In microwave systems used for sample preparation, the power output of the
magnetron is controlled by "cycling" the magnetron to obtain an average
power level.
P. Ex. 2009, p. 19.
The Neas publication is apparently Chapter 2 of a book titled "Introduction to Microwave
Sample Preparation - Theory and Practice," published by the American Chemical Society. Chapter
2 is titled "Microwave Heating - Theoretical Concepts and Equipment Design." P. Ex. 2009, p. 7.
The introduction of the paper states:
This chapter discusses the theoretical concepts of dielectric loss, ionic
conduction, dipole rotation and sample size as they relate to microwave
heating for acid dissolutions. The chapter includes the design of microwave
equipment and accessories to meet the heating reguirements for acid
dissolution. These microwave instruments protect the magnetron, prevent
corrosion, and provide for uniform heating.
P. Ex. 2009, p. 7 (emphasis added). Par& has not provided any evidence or any argument on why
one having ordinary skill in the art would understand the microwave oven or microwave applicator
as used in the Par6 patents to have the characteristics of a microwave heater particularly useful for
acid dissolutions. The Neas publication, alone or considered along with the Fritts patents, does not
establish that the microwave heaters in the Par& patents would necessarily be operated in a pulsed
or cycled mode. While it might be possible to use the microwave sources disclosed in Neas and the
Fritts patents, Par6 has not proved that it is necessarily so. Inherency may not be based on
probabilities or possibilities. Oelrich, 666 F.2d at 581, 212 USPQ at 326.
Even if the Par6 patents inherently disclosed treatment with microwave pulses, Par6 has not
established that those pulses would necessarily result in intermittently reduced pressure during the
exposure to microwaves. Par6 has not directed us to evidence showing that the ideal gas equation
predicts the behavior of the complex systems described, for example, in the Pard Example 2.
Example 2 describes putting fresh sage into a sealed container system including a sorbent. The
contents of the container were exposed to microwaves for 90 seconds to volatilize terpenoids present
in the sage. The terpenoids were absorbed by the sorbent. P. Ex. 2002, col. 7,1. 66 - col. 8,1. 42.
Thus, Pard Example 2 describes a container including both gases and solids and in which gas (the
Volatiles terpenoids) are both added to the mixture by volatilization and deleted from the mixture
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