Appeal 2006-2898
Application 10/461,687
The Examiner relies on the following reference in rejecting the
appealed subject matter:
Smith US 5,403,479 Apr. 4, 1995
The Examiner rejected claims 1, 3, 35, and 43 under 35 U.S.C.
§ 102(b) as anticipated by Smith.
The Examiner rejected claims 12-16, 36, 41, and 42 under 35 U.S.C.
§ 103 as obvious over Smith.
ISSUE
The Examiner contends that Smith describes a method for cleaning
one or more membranes normally immersed in water containing solids
where one or more cleaning events occur per week over and at least 15 days
that meet step (a) and step (b) of the claimed invention. The Examiner
contends that the frequency of the cleaning event can be optimized
depending on the quality and quantity of water to be treated (Answer 4).
The question before us is whether the Examiner has properly
determined that the Smith reference teaches or describes the claimed subject
matter within the meaning of 35 U.S.C. § 102(b) when the Examiner
recognizes that the optimization of the cleaning process described in Smith
is required to arrive at the claimed cleaning frequency feature. We answer
this question in the negative.
PRINCIPLES OF LAW
The Examiner has the burden of making out a prima facie case of
anticipation by pointing out where each and every element of the claimed
invention is described in a single prior art reference, either expressly or
under the principles of inherency, in a manner sufficient to have placed a
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