Appeal No. 2006-1447 Παγε 4
Application No. 10/775,881
relied upon by the examiner as support for the rejections. We
have, likewise, reviewed and taken into consideration, in
reaching our decision, appellants' 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 1-3, 5 and 6 under 35 U.S.C. § 102(b) as being anticipated
by Vermolen. We note at the outset that appellants argue
the claims as a group. Accordingly, we select claim 1 as
representative of the group. We note by way of background that 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).
Appellants assert (brief, page 7) that “the Examiner
has failed to disclose where in Vermolen, et al. the membrane
defines an aperture to allow a specified amount of fluid flow between the two chambers
when the membrane is in its second position where the fluid passage between the two
chambers is closed.” It is argued (brief, pages 7 and 8) that when shim
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