Appeal No. 2004-2032
Application No. 09/729,498
Examiner may consider the so-programmed control means to perform
the determining function and step under consideration. This is
incorrect. While the control means effectuates the function
programmed by the operator, such effectuation constitutes nothing
more than the initiation of pre-programmed events. This event
initiation by Lewis’ control means is based solely on operator
programming and thus does not include the function or step of
compatibility determination. For this reason, patentee’s control
means is plainly distinct from the Appellants’ claimed computing
means which performs the function and step of determining the
compatibility of pharmaceutical components relative to one
another.
The circumstances recounted above persuade us that the
Examiner’s anticipation finding is erroneous for a number of
reasons. First, as correctly indicated by the Appellants, the
Examiner has improperly focused on the column 6 disclosure of Lewis
without regard to context with the entire disclosure as a whole.
By doing so, the Examiner seemingly has failed to appreciate that,
in Lewis’ invention, the compatibility versus incompatibility
of fluids is determined by the operator when programming the
control means rather than by the control means itself. Second, in
considering patentee’s column 6 disclosure, the Examiner in essence
has assumed that fluid compatibility versus incompatibility was
determined by the control means even though the disclosure contains
no express teaching of such determination as we pointed out
earlier. In this regard, we reiterate the previously mentioned
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