Appeal 2006-2564
Application 10/259,743
through on/off gas supply valve assembly for activating and
automatically turning off the on/off gas supply valve during the
processing cycle, wherein the timer can be set up depending on
process cycle (reads on “a programmable controller coupled to
the producing means to control the producing means to activate
the physical action for a selected duration and ceasing the
physical action”, instantly claimed). (See Abstract, col. 2, lines
5-30; col. 3, lines 51-57; claims 6, 7, 9, 10; Fig. 1 and 2).
The Appellant has not disputed that Calio teaches the claimed tank
(the tank described at page 6 of the Specification) and producing means (the
gas bubbling system described at page 7 of the Specification). (See Br. and
Reply Br. in their entirety). Nor has the Appellant disputed that Calio
teaches the timer coupled to the producing means to activate and
automatically turn off the producing means. Id. The Appellant primarily
argues that Calio does not teach the claimed programmable controller. (Br.
4-6 and Reply Br. 2-3).
The dispositive question is, therefore, whether Calio teaches the
claimed programmable controller.1 On this record, we answer this question
in the affirmative.
As is apparent from pages 7 and 8 of the Specification, the claimed
programmable controller is broadly defined as follows:
1 The Appellant’s argument that Calio is non-analogous art, for example, is
not relevant to whether that reference anticipates the claimed subject matter
within the meaning of 35 U.S.C. 35 U.S.C. § 102(e). In re Self, 671 F.2d
1344, 1350, 213 USPQ 1, 7 (CCPA 1982). Moreover, the Appellant’s
reference to functional limitations, without any discussion of their effect on
the structure or arrangement of the claimed apparatus, is meaningless since
the claimed apparatus must be distinguished from the prior art apparatus
based upon structure, not function. In re Schreiber, 128 F.3d 1473, 1477, 44
USPQ2d 1429, 1432 (Fed. Cir. 1997).
4
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