Appeal 2006-2492
Application 09/916,247
I. Claims 26-36 are rejected under 35 U.S.C. § 102 (b) as anticipated
by Smith. 1
ISSUE
The Examiner contends that Smith figure 4 describes a process of
filtering water containing solids that includes backwashing the membrane at
least once a week with a cleaning fluid of selected concentration (Answer 5).
The Examiner recognizes that Smith does not describe the backwashing of
the filter system in the discussion of figure 4. However, the Examiner
contends that Smith provides a discussion in the "background of the
invention" portion of the specification that teaches draining the tank is not
necessary during the cleaning process (Answer 5).
The issue before us is whether the Examiner has properly determined
that the Smith reference teaches or describes the claimed subject matter
under 35 U.S.C. §102(b). Specifically, the issue is whether the Examiner
has properly determined that Smith describes a specific disclosure that
includes the backwashing of the membranes, draining the tank of retentate,
and wetting the membranes at least once per week with a cleaning chemical?
We answer this question in the negative.
PRINCIPLES OF LAW
The Examiner bears the initial burden of establishing a prima facie
case of anticipation In re King, 801 F.2d 1324, 1326-27, 231 USPQ 136, 138
(Fed. Cir. 1986). Anticipation under 35 U.S.C. § 102 requires that "each and
every element as set forth in the claim is found, either expressly or
inherently described, in a single prior art reference." In re Robertson 169
F.3d 743, 745, 49 USPQ2d 1949, 1950 (Fed. Cir. 1999).
1 We will limit our discussion to claim 26, the only independent claim presented in the rejection.
4
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