Appeal 2006-2776
Application 09/970,279
reference discloses every feature of the claimed invention, either explicitly
or inherently (see Hazani v. U.S. Int'l Trade Comm'n, 126 F.3d 1473, 1477,
44 USPQ2d 1358, 1361 (Fed. Cir. 1997) and RCA Corp. v. Applied Digital
Data Systems, Inc., 730 F.2d 1440, 1444, 221 USPQ 385, 388 (Fed. Cir.
1984)). Anticipation under this section is a factual determination. See In re
Baxter Travenol Labs., 952 F.2d 388, 390, 21 USPQ2d 1281, 1283 (Fed.
Cir. 1991) (citing In re Bond, 910 F.2d 831, 833, 15 USPQ2d 1566, 1567
(Fed. Cir. 1990)).
Claims 21, 24, 29, 30, 31 and 34 are argued as a group.2 Hence, we
select claim 21 as the representative claim for this claim grouping.
In the case before us, the Examiner has reasonably determined that
Lemelson describes structure which representative claim 21 reads on (see
Answer 4 and 7-8). The Examiner points to drawing Figures 1 and 11 of
Lemelson and portions of the patent specification description relating thereto
in asserting the anticipation grounds of rejection. Id.
2 In the Reply Brief filed March 31, 2006, Appellants withdrew an earlier
request for separate consideration of claim 31 made in the Supplemental
Brief filed November 14, 2005, which is hereinafter referred to as the Brief.
A copy of the claims on appeal, sections identifying the Real Party in
Interest, Related Appeals and Interferences, Status of Claims and
Amendments, and Summary of Claimed Subject Matter can be found in an
April 18, 2005 Appeal Brief, submitted before reopening of prosecution by
the Examiner. The April 18, 2005 Appeal Brief, incorporated by reference
in the current Brief, addressed different rejections than those before us now.
4
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