Appeal No. 2005-0644 3
Application No. 09/804,522
Anticipation is established only when a single prior art reference discloses,
expressly or under the principles of inherency, each and every element of a claimed
invention as well as disclosing structure which is capable of performing the recited
functional limitations. RCA Corp. v. Applied Digital Data Systems, Inc., 730 F.2d 1440,
1444, 221 USPQ 385, 388 (Fed. Cir.); cert dismissed, 468 U.S. 1228 (1984); W.L. Gore
and Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1554, 220 USPQ 303, 313 (Fed.
Cir. 1983), cert. denied, 469 U.S. 851 (1984).
According to the examiner (answer, pages 3 and 4):
With regard to Claims 1, 2, and 6, Maekawa et al. discloses an LED
illumination source device for use in a flow particle detection device, such
as in a flow cytometer (See Figures 1, 3, 5, 6, 9; col. 3, line 56-col. 5, line
62), comprising an LED (See 16 in Figure 5; 29 in Figure 9; col. 5, lines 6-
13) for providing light at a selected wavelength, and an optical element
(See 30, 21 in Figure 9) for collecting nearly all of the light from the LED
and concentrating the collected light at a selected volume within a flow
sample stream. Maekawa et al. additionally discloses the optical element
comprising a collecting element (See 30 in Figure 9) and a focusing
element (See 21 in Figure 9).
Appellant argues (brief, page 4) that:
The single reference cited (U.S. Pat. No. 5,644,388 to Maekawa et al) by
the Examiner does not show, teach or suggest every element of the
rejected claims, directly or inherently. Specifically if [sic, it] does not show
“an optical element for collecting nearly all of the light from the LED . . .”
as is specified in each independent claim.
Appellant additionally argues (brief, page 4) that an optical element spaced from a light
source will collect nearly all of the light incident upon it; however, it will not “collect
nearly all of the light from the light source” as required by the claims on appeal.
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