Appeal No. 2006-0450 Παγε 4
Application No. 10/044,141
have made but chose not to make in the brief have not been
considered. See 37 CFR § 41.37(c)(1)(vii)(eff. Sept. 13, 2004).
OPINION
In reaching our decision in this appeal, we have carefully
considered the subject matter on appeal, the rejections advanced
by the examiner, and the evidence of anticipation and obviousness
relied upon by the examiner as support for the rejections. We
have, likewise, reviewed and taken into consideration, in
reaching our decision, appellant’s arguments set forth in the
briefs along with the examiner's rationale in support of the
rejections and arguments in rebuttal set forth in the examiner's
answer. Upon consideration of the record before us, we make the
determinations which follow.
We begin with the rejection of claims 1-6 and 11-21 under
35 U.S.C. § 102(e) as being anticipated by Chun-Jen. It is well settled
that if a prior art device inherently possesses the capability of functioning in the manner
claimed, anticipation exists whether there was a recognition that it could be used to
perform the claimed function. See, e.g., In re Schreiber, 128 F.3d 1473, 1477, 44
USPQ2d 1429, 1431-32 (Fed. Cir. 1997).
Appellant asserts (brief, page 6) that Chun-Jen does not teach
“a generally planar third surface disposed in opposed,
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