Appeal No. 2006-2797 Page 11
Application No. 09/341,821
23. When autoclaving is used to sterilize the container, the container is filled with
wound cleansing solution, sealed, autoclaved, and then filled with a gas propellant. Id.,
column 5, lines 8-21. In our view, these steps are the logical and necessary steps that
would be required to prepare Jass’s aerosol container for use. Jass’s container holds
gel in an inner container and therefore must be filled with it, meeting step (i) of claim 8; it
also has an “opening valve” that seals the inner container (column 3, lines 20-28, stating
that the “dispensing valve assembly” forms “a pressure tight closure when the valve is
closed”) as required in step (ii); a pressure medium is introduced “between the inner
container and the outer casing container,” meeting step (iii) (Fig. 2, compare [B] and
[54]; the gas is introduced into B as described on column 4, lines 24-28).
We recognize that Jass does not expressly state that the three steps required by
claim 8 are carried out, but such steps would be necessary to prepare his disclosed
aerosol package filled with the components of the gel bandage. To anticipate a claim, a
prior art reference must disclose every limitation of the claimed invention, either
explicitly or inherently.” Atlas Powder Co. v. Ireco, Inc., 190 F.3d 1342, 1346, 51
USPQ2d 1943, 1945 (Fed. Cir. 1999). “Under the principles of inherency, if the prior art
necessarily functions in accordance with, or includes, the claimed limitations, it
anticipates.” Id., 190 F.3d at 1347; 51 USPQ2d at 1946. For the foregoing reason, we
conclude that these conditions are met here.
We designate this as a new grounds of rejection because we are not relying on
the combination of references upon which the Examiner based the § 103 rejection.
Rather, we are setting forth a new ground of rejection of claim 8 as anticipated under
§ 102(b) by Jass.
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