Appeal No. 2003-1153
Application No. 09/349,214
concern the crash classification mask used in a logical operation
to combine with the sensor data to arrive at a restraint
deployment code. Simply put, Hermann's approach to solving the
problem of which restraint(s) should be deployed is different
from Appellants' approach.
The Examiner apparently relies on inherency in maintaining
that Hermann teaches the crash classification masks and restraint
deployment codes. See page 2 of the final Office action on May
7, 2002. "To establish inherency, the extrinsic evidence 'must
make clear that the missing descriptive matter is necessarily
present in the thing described in the reference, and that it
would be so recognized by persons of ordinary skill." In re
Robertson, supra, 169 F.3d 743, 745, 49 USPQ2d 1949, 1950-1951
citing 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." In re Robertson, supra,
169 F.3d 743, 745, 49 USPQ2d 1949, 1951.
We fail to find that the Examiner has established that
Hermann's control device must employ "crash classification mask"
used in a logical operation to combine with the sensor data to
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