Appeal No. 2004-0804
Application No. 09/757,886
Because the appellants make no substantive argument against
this ground of rejection, we affirm.3
II. Claims 1, 2, 7, & 8 under 35 U.S.C. § 102(b)
over EP ’262
“To anticipate a claim, a prior art reference must disclose
every limitation of the claimed invention, either explicitly or
inherently.” In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d
1429, 1431 (Fed. Cir. 1997); accord Glaxo Inc. v. Novopharm
Ltd., 52 F.3d 1043, 1047, 34 USPQ2d 1565, 1567 (Fed. Cir. 1995).
The examiner states that Figures 1 and 2 of EP ’262
anticipate the appealed claims. (Answer, page 3.) The
appellants, on the other hand, argue that EP ’262 does not
disclose the recited cross-sectional area relationship between
the lower end and the upper end of the downcomer of “less than
about 40%” (appealed claim 1) or “less than 40%” (appealed claim
7). (Appeal brief, pages 3-4.)
We agree with the appellants on this issue. The examiner
does not refer us to any part of EP ’262 that describes, either
expressly or inherently, each and every claim limitation,
3 We lack jurisdiction to review an examiner’s decision to
deny entry of an amendment. The appellants’ proper recourse
would have been to file a timely petition requesting supervisory
review pursuant to 37 CFR § 1.181 (2003) (effective Feb. 5,
2001). See MPEP §§ 714.13 and 1002.02(c) (Rev. 1, Feb. 2003 and
Aug. 2001).
6
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