Appeal No. 2005-1115
Application 09/269,369
20 which is a hollow, elongated body at one end of which is
attached head 21 that has nozzles 27 attached thereto in a
substantially perpendicular manner, the nozzles 27 each having
one angle fittings 28, which are “elbow portions,” and one
concentric reducer in the nozzle itself as seen from Jackson Fig.
2. Thus, diffuser C of Jackson satisfies all of the limitations
of appealed claims 11 and 12 as well.
Accordingly, diffuser C as disclosed by Jackson, prima
facie, describes each and every element of the claimed “diffuser”
encompassed by appealed claims 7, 11 and 12, arranged as required
by these claims, as I have interpreted these claims above, in a
single prior art reference, either expressly or under the
principles of inherency. See generally, Robertson, 169 F.3d at
745, 49 USPQ2d at 1950-51; In re Schreiber, 128 F.3d 1473, 1477,
44 USPQ2d 1429, 1431 (Fed. Cir. 1997); King, 801 F.2d at 1326,
231 USPQ at 138; Lindemann Maschinenfabrik v. American Hoist and
Derrick, 730 F.2d 1452, 1458, 221 USPQ 481, 485 (Fed. Cir. 1984).
Therefore, based on the substantial evidence in
Jackson, I would affirm the ground of rejection of appealed
claims 7, 11 and 12 under 35 U.S.C. § 103(a) on the basis that,
as a matter of fact, the claimed “diffuser” encompassed by each
of these claims is anticipated by Jackson, and it is well settled
that “anticipation is the ultimate of obviousness.” See In re
Baxter Travenol Labs., 952 F.2d 388, 391, 21 USPQ2d 1281, 1284-85
(Fed Cir. 1991) (citing In re Fracalossi, 681 F.2d 792, 794, 215
USPQ 569, 571 (CCPA 1982)). I do not find it necessary to
discuss Kinsey in reaching this position. See In re Kronig, 539
F.2d 1300, 1302-04, 190 USPQ 425, 426-28 (CCPA 1976).
The sole difference between the application of diffuser
C described by Jackson and appealed claims 1, 3 and 4, involves
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