Appeal No. 2004-0612
Application No. 09/531,660
Burckel, 592 F.2d 1175, 1178-79, 201 USPQ 67, 70 (CCPA 1979); In
re Herbert, 461 F.2d 1390, 1391, 174 USPQ 259, 260 (CCPA 1972).
Hence, we limit our discussion to the independent claim.
Kuwabara discloses an X-ray apparatus for analyzing a
sample (2) (col. 1, lines 7-10), comprising an X-ray source (1)
for radiating a primary X-ray onto the sample, an X-ray
detector (7) for detecting a secondary X-ray emanating from the
sample in response to irradiation of the primary X-ray onto the
sample, and a collimator (4) interposed in a path of the
secondary X-ray between the sample and the X-ray detector for
allowing a collimate component of the secondary X-ray to pass
therethrough (col. 1, lines 12-50; col. 3, lines 49-56; col. 5,
lines 1-11; figure 1).
The appellant argues that “the collimator of Kuwabara does
not serve to allow substantially only a collimate component of
the secondary X-ray to pass therethrough as required by
independent claim 5" (brief, page 15). This argument is not well
taken because, first, the appellant is relying upon a limitation
which is not in claim 5. See In re Self, 671 F.2d 1344, 1348,
213 USPQ 1, 5 (CCPA 1982). Second, Kuwabara indicates that the
collimator allows substantially only a collimate component of the
secondary X-ray to pass therethrough (col. 1, lines 21-26;
col. 3, lines 54-56; col. 5, lines 2-6).
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