Appeal No. 2002-1672
Application No. 09/412,124
Continental Can Co. v. Monsanto Co., 948 F.2d 1264, 1268, 20
USPQ2d 1746, 1749 (Fed. Cir. 1991). “Inherency, however, may not
be established by probabilities or possibilities. The mere fact
that a certain thing may result from a given set of circumstances
is not sufficient.” Id. citing Continental, 948 F.2d at 1269, 20
USPQ2d at 1749.
With respect to the Examiner’s 35 U.S.C. § 102(e) rejection
of independent claims 1 and 12 based on Argade, we find the
Examiner’s attempt to find corresponding disclosure in Argade to
be similarly deficient as that previously discussed with regard
to Circello. We find no description in the columns 4 and 5
disclosure of Argade pointed to by the Examiner, nor elsewhere in
Argade, that would support the Examiner’s contention that
instructions are acquired before and after a triggering event as
claimed. As with the Circello reference, Argade, at best,
discloses the acquiring of instructions after a triggering event,
arguably the breakpoint as discussed at column 6, lines 28-39,
but we find no disclosure of acquiring instructions before such
event as claimed.
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