Appeal 2007-0380
Reexamination Control 90/007,199
Patent 6,394,644 B1
as a whole. Reiffin v. Microsoft Corp., 214 F.3d 1342, 1346, 54 USPQ2d
1915, 1917 (Fed. Cir. 2000). By disclosing a device that inherently has a
property, that property is disclosed even if the properly is not stated
explicitly. In re Smythe, 480 F. 2d 1376, 178 USPQ 279 (CCPA 1973).
To establish inherency, the extrinsic evidence 'must make clear
that the missing descriptive matter is necessarily present in the
thing described in the reference, and that it would be so
recognized by persons of ordinary skill. Inherency, however,
may not be established by probabilities or possibilities. The
mere fact that a certain thing may result from a given set of
circumstances is not sufficient.'
In re Robertson, 169 F.3d 743, 745, 49 USPQ2d 1949, 1950-51 (Fed. Cir.
1999) (citations omitted).
IV. Analysis
Duke
Claims 1, 2, 5, 15-23, and 28 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Duke.
Claim 13
Streiff argues that Duke does not teach the limitation requiring the
saddle element to have crossbars wherein “each respective crossbar is
laterally connected directly to an adjacent crossbar at respective ends
thereof.” Streiff argues that the figures of Duke show that each crossbar is
connected, not to an adjacent crossbar, but instead to a rib 5. (Br. 14).
Streiff points to the portion of the rib 5 that extends in the spaces between
3 Streiff states that claims 2, 5, 23, and 28 are not anticipated by Duke
“for the same reasons expressed with respect to claim 1.” (Br. 16, 21, and
24).
8
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