Appeal No. 2006-1470 Παγε 3
Application No. 10/122,299
The examiner has rejected claims under 35 U.S.C. § 102(b). We initially note
that to support a rejection of a claim under 35 U.S.C. § 102(b), it must be shown that
each element of the claim is found, either expressly described or under principles of
inherency, in a single prior art reference. See Kalman v. Kimberly-Clark Corp., 713
F.2d 760, 772, 218 USPQ 781, 789 (Fed. Cir. 1983), cert. denied, 465 U.S. 1026
(1984). In support of this rejection, the examiner finds:
Feierbach shows a system for medical use having the
limitations as recited in the above listed claims, including: a
device (12) that is implanted under the skin of a patient that
stores information of the subject, where the information is
selected from the group consisting of data or medical
records (see col. 8, lines 6-11) which can be read by an
external device (14); and where a visible marker (see col.
10, lines 24-30) can be used to help [sic, inform] the patient
that it is permissible for an operation to take place [answer at
page 3].
The examiner finds that the recitation in claims 2, 4 and 6 of an external visible
marking is disclosed in Feierbach at col. 10, lines 24-25.
Appellant argues that Feierbach discloses a communication device rather than a
storage device as claimed.
The argument is not persuasive because claims 1 and 5 are set out in comprising
format and as such are broad enough to include elements not specifically recited. In
addition, Feierbach discloses that the device therein disclosed stores data regarding
any physiological attribute of the patient (col. 4, lines 13 to 20).
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