Appeal 2007-0128
Reexamination Control 90/006,208
Patent 5,573,648
Dempsey teaches that its sensor, like Atwood=s, detects gases that bring
about a change in potential between the sensing and reference electrode. Dempsey,
like Atwood, states that its sensor detects a variety of gases including carbon
monoxide, NOx and alcohol vapors. Dempsey’s specification, like Atwood’s,
provides little if any guidance as to the selection of the materials needed to detect a
specific gas.
Additionally, we note that Tomantschger teaches that one of ordinary skill in the
art knew how to devise a specific gas detection system using suitable catalysts and
electrolytes to test for any toxic, combustible or flammable gas. (Tomantschger,
col. 2, ll. 42-46). Based upon the references of record, including Dempsey and
Tomantschger, we find that one of ordinary skill in the art knew how to select the
appropriate materials to detect a particular gas. 6
6 See, In re Epstein, 32 F.3d 1559, 1568, 31 USPQ2d 1817, 1823 (Fed. Cir. 1994)
("Rather, the Board's observation that appellant did not provide the type of detail in
his specification that he now argues is necessary in prior art references supports the
Board's finding that one skilled in the art would have known how to implement the
features of the references and would have concluded that the reference disclosures
would have been enabling."); In re Fox, 471 F.2d 1405, 1407, 176 USPQ 340, 341
(CCPA 1973) (appellant's specification "assumes anyone desiring to carry out the
process would know of the equipment and techniques to be used, none being
specifically described"); Constant v. Advanced Micro-Devices, Inc., 848 F.2d
1560, 1569, 7 USPQ2d 1057, 1063 (Fed. Cir. 1988) ("The disclosure in Exhibit 5
is at least of the same level of technical detail as the disclosure in the '491 patent.
If disclosure of a computer program is essential for an anticipating reference, then
the disclosure in the '491 patent would fail to satisfy the enablement requirement of
35 U.S.C. ' 112, First &.").
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