Appeal No. 2002-2179
Application No. 08/839,861
unit transmitting an emergency call request. Communication between other subscriber
units may be preempted, allowing the subscriber unit with the emergency call to have
immediate and unlimited access to the communication channel. Johnson col. 3, ll. 17-
31; col. 4, l. 46 - col. 5, l. 8.
Appellants submit that Johnson does not disclose all the elements of instant
claim 10. (Brief at 7-8.) Appellants’ argument appears to be that Johnson does not use
the term “continuous transmission.” However, anticipation is not an “ipsissimis verbis”
test. Akzo N.V. v. ITC, 808 F.2d 1471, 1479, 1 USPQ2d 1241, 1245 (Fed. Cir. 1986).
The proper standard for determining anticipation focuses, in the instant case, on
whether the artisan would consider the claims, as properly interpreted, to be fully met
by the embodiment described by Johnson -- even if Johnson does not describe the
invention using the same terms as the instant claims.
Appellants further argue that the rejection improperly applies the law of
inherency to support the finding of anticipation. (Brief at 8-9.) We consider the
argument to be inapposite. The rejection is founded on the view that the method
expressly described by Johnson falls within the meaning of “continuous transmission”
as set forth by instant claim 10. Appellants submit that it does not. (Brief at 9-10.)
Appellants link the claim language “continuous transmission” with a mobile unit
being ordered not to activate a “Discontinuous Transmission” (DTX) feature, described
at the bottom of page 9 of the specification. Appellants do not appear to argue,
however, that “continuous transmission” must be interpreted as limited to preventing
-4-
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007