Appeal No. 2004-0050
Application No. 09/692,641
elevation of the two ends of the net’s upper edge margin does not exceed the elevation
of the mid-point of the net’s upper edge margin by more than approximately 3/4" (2
cm) when the ends of the net’s upper edge margin are at approximately the same
elevation. The Examiner has not addressed this limitation of the claimed invention.
Likewise, the Examiner does not address the step of raising or lowering the upper
section of the net standards without reducing the tension of the net-supporting cable
from the net-supporting tension. The Examiner’s conclusion that the modified
invention of Koole is inherently capable of height adjustment both before and after
tensioning of the net-supporting cable does not indicate that the tension meets the
requirements of the claimed invention. Assuming the Examiner is correct, there is no
evidence that a person of ordinary skill in the art would have necessarily used a
tension that is sufficient to meet the present claims. Inherency cannot be established
by probabilities or possibilities. See In re Oelrich, 666 F.2d 578, 581, 212 USPQ
323, 326 (CCPA 1981). As stated in In re Rijckaert, 9 F.3d 1531, 1534, 28 USPQ2d
1955, 1957 (Fed. Cir. 1993) (quoting from In re Oelrich, 666 F.2d at 581, 212 USPQ
at 326), “[t]he mere fact that a certain thing may result from a given set of
circumstances is not sufficient [to establish inherency]” (emphasis in original). Under
these circumstance, we cannot conclude that the Examiner has met the minimum
threshold of establishing.
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