Appeal No. 2006-3037
Application No. 10/033,225
OPINION
We have carefully considered the subject matter on appeal, the rejection
advanced by the examiner and the evidence of anticipation relied upon by the examiner
as support for the rejection. We have, likewise, reviewed and taken into consideration,
in reaching our decision, the appellant's arguments set forth in the briefs along with the
examiner’s rationale in support of the rejection and arguments in rebuttal set forth in the
examiner’s answer.
It is our view, after consideration of the record before us, that the disclosure of
Czyszczewski fully meets the invention as set forth in claims 1, 4, 7-12, 14, 17-25, and
27. We reach the opposite conclusion, however, with respect to claims 5, 6, 15, 16, and
26. Accordingly, we affirm-in-part.
Anticipation is established only when a single prior art reference discloses,
expressly or under the principles of inherency, each and every element of a claimed
invention as well as disclosing structure which is capable of performing the recited
functional limitations. RCA Corp. v. Applied Digital Data Systems, Inc., 730 F.2d 1440,
1444, 221 USPQ 385, 388 (Fed. Cir. 1984); W.L. Gore and Associates, Inc. v. Garlock,
Inc., 721 F.2d 1540, 1554, 220 USPQ 303, 313 (Fed. Cir. 1983). Only those arguments
actually made by appellant have been considered in this decision. Arguments which
appellant could have made but chose not to make in the briefs have not been
considered and are deemed to be waived [see 37 CFR § 41.37(c)(1)(vii)(2004)].
The examiner has indicated how the claimed invention is deemed to be fully met
by the disclosure of Czyszczewski [answer, pages 3-9]. Regarding independent claims
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