Appeal 2006-3332
Application 10/161,519
another part of the matrix [i.e., mixture] having an insecticide can be
considered as the toxicant containing matrix” (Final Rejection 5). The
Examiner further explains that,
on page 1 of the translation, it is stated that the
hollow portion of the housing is filled with a
mixture of pulp, sawdust, sugars and a slowly-
acting insecticide. Hence, there are three areas in
the housing. The first is the mixture of pulp,
sawdust and sugars. The second is the slow-acting
insecticide. The third is a small area where the
first two ingredients mix when one is poured over
the other. This forms a matrix. The housing
holds both a toxicant free monitoring device which
is the pulp and sawdust and sugar, and a toxicant
containing matrix. A second interpretation is that
the pulp, sawdust and sugar are mixed with the
toxicant to form a matrix. Part of the matrix
contains only the bait, part of the matrix contains
the toxicant and part contains both. That part of
the matrix containing the bait is considered to be
the monitoring device.
(Answer 3.)
The portion of the Takenaka Translation alluded to by the Examiner
does not support the Examiner’s apparent assumption that some portion of
the mixture of pulp, sawdust, sugars, and slowly-acting insecticide described
by Takenaka is free of insecticide or toxicant. While Takenaka’s mixture
comprises several ingredients, the Takenaka Translation gives no indication
that the mixture is anything other than homogeneous, with insecticide
present throughout. Accordingly, we conclude the Examiner erred in
determining that Takenaka’s mixture satisfies the “toxicant-free monitoring
device” limitation of claims 1 and 12. Anticipation is established only when
a single prior art reference discloses, expressly or under the principles of
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