Appeal No. 2002-2034
Application No. 09/175,080
fundamentally the same and consistent with the [claimed]
invention” (Examiner’s Answer, page 12, lines 12-13), we disagree
with the examiner’s conclusion of anticipation by the above quoted
passage.
As set forth in Gechter v. Davidson, 116 F.3d 1454, 1457, 43
USPQ2d 1030, 1032 (Fed. Cir. 1997), “[u]nder 35 U.S.C. § 102,
every limitation of a claim must identically appear in a single
prior art reference for it to anticipate the claim.” “Every
element of the claimed invention must be literally present,
arranged as in the claim.” Richardson v. Suzuki Motor Co., Ltd.,
868 F.2d 1226, 1236, 9 USPQ2d 1913, 1920 (Fed. Cir. 1989).
Although Fukushima describes an interrupt key 43 to enter
additional destinations and a user may then send out the
transmission to the recipients, this description does not clearly
describe the claimed sequence of steps. Depending on when the
interrupt button is pushed, and whether transmission has
commenced, one may or may not end up with the invention of claim
1. We therefore conclude that this disclosure is insufficient to
anticipate the claimed invention. Consequently, we are
constrained to reverse this rejection.
However, we remand this application to the jurisdiction of
the examiner to consider whether an additional rejection founded
on 35 U.S.C. § 103 should be applied to claim 1 and the claims
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