Appeal No. 2006-2368 Page 7
Application No. 10/247,032
allowing the bus deriver to view the front and passenger side of the bus. See id.,
304 F.3d at 1376, 64 USPQ2d at 1679. In determining whether the curvature of
the mirror was inherent in the prior art, the Court of Appeals for the Federal
Circuit stated that “‘[i]nherent anticipation requires that the missing descriptive
material is ‘necessarily present,’ not merely probably or possibly present, in the
prior art.’” Id., 304 F.3d at 1380, 64 USPQ2d at 1680. In the case before us,
Erren demonstrates that the limitation of the patient having a CRP level greater
than about 0.4 mg/dL is necessarily present in over half of atherosclerosis
patients, the same patients being treated in the method taught by Rosenblum.
CONCLUSION
Because we find that the examiner has set forth a prima facie case of
unpatenability of claims 1-3, 10, 12, 13, 17, 19, 20 and 30-35 as being
anticipated by Rosenblum, that rejection is affirmed, and we decline to reach the
merits of the remaining rejections.
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