213 USPQ 196,200 (CCPA 1982); In re Lange , 503 F.2d 1380,1395,183 USPQ 288,299 (CCPA
1974).
Secondly, Par6 has not directed us to convincing evidence that a "Microwave oven," or
"microwave applicator" as used in the Par6 patents or even "a conventional microwave oven," would
necessarily be operated in a pulsed mode in carrying out the Par6 microwave extractions. In order
to prove inherency the alleged inherent feature must always and necessarily occur. ContinentaIC ,
948 F.2d at 1268-69, 20 USPQ2d at 1749. In order to establish inherent description of the use of
pulsed microwaves, Par6 must establish that the necessary and only reasonable construction of the
Par6 patents is to generate microwaves in pulses. Kennecott 835 F.2d at 1423, 5 USPQ2d at 1198.
Par6 cites U.S. Patents 4,149,057 and4,177,369 (P. Ex. 2007 and 2008), both issuedto Fritts.
The Fritts patents are purported to show that microwave ovens have the capability to operate in a
pulsed mode. Paper 40, pp. 6-8. Those patents appear to be directed to household-type appliances.
E.g., P. Ex. 2007, col. 1, 11. 27-32 and Fig. 1. Par6, however, has not directed us to any evidence
which shows that the microwave ovens described in the Fritts patents are the type one of ordinary
skill art in the microwave extraction art would use to perform the extractions taught in the Par6
patents. In any event, assuming, without deciding, that a person of ordinary skill in the microwave
extraction arts would employ the microwave ovens of the type described in the Fritts patents to carry
out the processes described in the Par6 patents, Par6 has not demonstrated that those microwave
ovens would necessarily be operated in a pulsed mode during the extraction process. While, the
Fritts patents teach that the microwave ovens disclosed therein are capable of operating in the pulsed
mode, they are also capable in operating in a full power mode. E.g. P. Ex 2007, col. 1, 11. 33-40.
Thus, it may be possible to operate the microwave ovens described in the Fritts patents in a pulsed
mode. However, the evidence does not show that a person having ordinary skill in the art would
necessarily use them in a pulsed mode.
Par6 also relies on a publication by Neas et al, (P. Ex. 2009) as supporting the argument that
the microwave oven or applicator disclosed in the Par6 patent would inherently provide microwaves
in pulses. Par& directs us (Paper 40, pp. 7-8) to the portion of the Neas publication which states:
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