Appeal No. 2007-0048 Page 3
Application No. 10/234,608
anticipated only if each and every element as set forth in the claim is found,
either expressly or inherently described, in a single prior art reference.”
Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628, 631, 2 USPQ2d
1051, 1053 (Fed. Cir. 1987).
Claim 11 is directed to a web comprising a plurality of aerogel-filled
vacuum insulated panels. The Examiner argues that “Martin discloses a web of
aerogel 32 filled panels 22” (Answer, p. 3) (see, for example, Fig.-1A, reference
number 20) and Appellant has not disputed this.
However, claim 11 further requires the web to have at least one
perforation between one or more of the aerogel-filled vacuum insulated panels
allowing for separation of the panels from each other.
The Examiner (Answer, p. 3) takes the position that Martin teaches the
perforation feature set forth in claim 11 because “Martin discloses that the body
20 is cut by a cutting process which fully responds to the limitation of ‘at least one
perforation’ (see column 5, lines 10-20).”
According to Martin at column 5, lines 10-20:
A great advantage of making the body 20 in accordance with
the embodiment of Fig. 1, in which the cell wall are made from a
material impermeable to air or other gases, is that a multiplicity of
shapes can be machined or otherwise cut as shown, for example in
FIG. 3A, without disturbing the thermal insulating or other
properties of the body 20. As each cell maintains its own vacuum or
other environment containing desirable gases or liquids, a cutting
process will only affect the cells on the periphery which are actually
cut and not the cells comprising the field of the shape.
Nowhere in this passage is “perforation” explicitly mentioned. Martin may
nevertheless anticipate claim 11 if the cutting process described in Martin, per
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