Appeal No. 2006-1095 Page 14
Application No. 10/280,188
In response, we note that the Court of Appeals for the Federal Circuit
has determined that the absence of a disclosure relating to function does not
defeat a finding of anticipation if all the claimed structural limitations are
found in the reference. In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d
1429, 1431 (Fed. Cir. 1997). In Schreiber, the court held that a funnel-
shaped oil dispenser spout anticipated a claimed conical-shaped popcorn
dispensing top, even though the function of popcorn dispensing was not
taught by the reference, because the reference met all the structural
limitations of the claim. In re Schreiber, 128 F.3d at 1479, 44 USPQ2d
at 1433.
In the instant case, we find that the Dietz reference does teach all the
structural elements arranged as claimed, as pointed out by the examiner in
the rejection [answer, see rejection of claim 1, pages 5 and 6]. We note
again that appellants have acknowledged in the brief that Dietz teaches
multi-mode waveguides [brief, page 5, ¶1]. Therefore, we agree with the
examiner that Dietz’s disclosed structure is inherently capable of performing
the instant intended purpose or function of using propagational modes for
detection purposes.
Accordingly, because the absence of a disclosure relating to an
intended use or function does not defeat a finding of anticipation, we will
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