Appeal No. 2003-1778 Page 6
Application No. 08/988,292
on appeal "read on" something disclosed in the reference (see
Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772, 218 USPQ 781,
789 (Fed. Cir. 1983), cert. denied, 465 U.S. 1026 (1984)).
Anticipation under this section is a factual determination.
See In re Baxter Travenol Labs., 952 F.2d 388, 390, 21 USPQ2d
1281, 1283 (Fed. Cir. 1991) (citing In re Bond, 910 F.2d 831,
833, 15 USPQ2d 1566, 1567 (Fed. Cir. 1990). In the case before
us, the examiner has determined that either Lerner or Kellet
discloses, expressly or inherently, a device meeting every
limitation of the invention set forth in representative appealed
claim 1.
Considering appealed claim 1, we observe that appellants do
not specifically contest or focus on the examiner’s determination
that each of Lerner (applicator elements 12 and 16, including 32)
or Kellett (hair styling brush elements 6 and 1) describe devices
that include structure corresponding to the member with surfaces
and a connecting medium specified in representative claim 1.
Rather, appellants’ arguments center on the contention that the
devices of Lerner or Kellett do not disclose a plurality of
protrusions capable of piercing a body surface, keeping in mind
appellants’ definition of “body surface,” as reproduced above.
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