Appeal No. 2003-1778 Page 8
Application No. 08/988,292
(14) of Lerner to meet the requirements of the protrusions
specified in representative claim 1.
Implicit in the examiner’s factual findings, with which we
agree, is the determination that the brush tines (5) of Kellett
or the members (14) of Lerner are of sufficient stiffness or
rigidity and sized to penetrate wound hair or move through hair
for brushing and for application of treating liquid or hair
coloring. See, e.g., column 15, lines 35-56 of Kellett. Those
factual findings are sufficient to establish, prima facie, that
those prior art tines and members would have been necessarily
capable of penetrating the relatively soft outer surfaces of some
plants, including the outer surfaces of ripening tomatoes, grapes
and/or other soft fruit surfaces.
It follows that we agree with the examiner that the infusion
members (14, fig. 2) of Lerner or the tines (5, fig. 2) of
Kellett are constructed in such a manner as to possess the here
claimed protrusions’ characteristics. Thus, the examiner has
established a prima facie case of anticipation by pointing out
where all of the claim limitations are described in a single
reference. See In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655,
1657 (Fed. Cir. 1990); In re King, 801 F.2d 1324, 1327, 231 USPQ
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