Appeal No. 2004-0727 Page 3
Application No. 09/690,173
DISCUSSION
Anticipation under 35 U.S.C. § 102 requires that a single prior art
reference disclose each and every limitation of the claimed invention. Electro
Med. Sys. S.A. v. Cooper Life Sci., 34 F.3d 1048, 1052, 32 USPQ2d 1017, 1019
(Fed. Cir. 1994). As we understand the rejection of record, Wang discloses kits
comprising containers of various reagents, including those set forth in appellant’s
claim 41. Accordingly, the examiner concludes (Answer, page 4), Wang “teach
each and every aspect of the instant invention thereby anticipating [a]ppellant’s
claimed invention.”
While claim 41 does not include a limitation drawn to “printed matter,”
such as instructions, appellant spends the bulk of the Brief and Reply Brief
discussing “printed matter.” According to appellant (Brief, page 14),
Wang fails to teach a kit containing the instructional element of the
present claims because Wang is concerned with an entirely
different method…. As such, Wang fails to teach each and every
element of the claims. Because Wang fails to teach each and
every element of the claimed kit, e.g., the instructions, Wang fails to
anticipate [c]laims 38 and 41-48….
Apart from appellant’s argument concerning “printed matter,” which is not
a limitation of claim 41, appellant identifies no other error in the rejection of claim
41 over Wang. Accordingly, we are compelled to affirm the rejection of claim 41
under 35 U.S.C. § 102(e) as anticipated by Wang. As set forth above, claims 32-
40 and 42-48 fall together with claim 41.
maintained the rejection of claims “32-48 for the reasons of record set forth in the Office Action
mailed 5-08-2002 [the Final Office Action, Paper No. 11].”
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