Appeal No. 2005-1949
Application No. 09/829,168
composition”. Claim 1 is therefore a method of using a product
made by a process. The product made by this process has no
limitations within the claim which distinguish the end product
from natural beagle milk.
The appellant observes that claim 1 recites that the canine
milk substitutes be “artificially produced.” (Appeal Brief, page
5, lines 3-5).
These claims are written in product-by-process format, and
as such are anticipated by a disclosure which is the same as a
product made by the recited process, no matter how the reference
product was made. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964,
966 (Fed. Cir. 1985).
Accordingly, we agree that the subject matter of claim 1 is
anticipated by puppies feeding upon natural beagle milk.
Anticipation under 35 U.S.C. Section 102 requires that "each and
every element as set forth in the claim is found, either
expressly or inherently described, in a single prior art
reference." Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d
628, 631, 2 USPQ2d 1051, 1053 (Fed. Cir. 1987). In this
instance, the naked assertion that the milk is “artificially
produced” does not overcome the anticipatory effect of natural
beagle milk.
5
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007