Appeal No. 2006-2575
Application No. 10/025,567
“It is well settled that a claim is anticipated if each and every
limitation is found either expressly or inherently in a single prior art
reference.” Celeritas Techs. Ltd. v. Rockwell Int’l Corp., 150 F.3d 1354,
1361, 47 USPQ2d 1516, 1522 (Fed. Cir. 1998). Because “anticipation is the
epitome of obviousness,” Connell v. Sears, Roebuck & Co., 722 F.2d 1542,
1548, 220 USPQ 193, 198 (Fed. Cir. 1983), we agree with the Examiner that
claim 5 would have been obvious in view of the cited references.
Appellants argue that “[t]here is no disclosure in Tokoro '895 of an
IgY immunoglobulin that binds to a colony-forming immunogen.”
(Br. 23-24.) We do not agree.
“Under the principles of inherency, if the prior art necessarily
functions in accordance with, or includes, the claims limitations, it
anticipates.” In re Cruciferous Sprout Litig., 301 F.3d 1343, 1349, 64
USPQ2d 1202, 1206 (Fed. Cir. 2002) (quoting MEHL/Biophile Int’l Corp. v.
Milgraum, 192 F.3d 1362, 1365, 52 USPQ2d 1303, 1305 (Fed. Cir. 1999)).
As discussed supra, Tokoro describes inoculating chickens with
pathogenic E. coli strains. Claim 5 clearly states that E. coli is a “colony-
forming immunogen.” As also discussed supra, one of Tokoro’s preferred
embodiments is the composition prepared by simply separating the antibody-
containing yolk and albumin from the egg shells, and drying the
composition, the exact steps recited in claim 5. Because it is made using the
exact steps recited in claim 5, Tokoro’s preferred composition necessarily
contains the IgY, IgM and IgA antibodies recited in the claim.
Appellants argue that Kaspers, Pimentel, and Krause do not
individually teach various claim limitations. (Br. 24-25.)
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