Appeal 2007-0417
Application 10/796,814
II. EVIDENCE RELIED UPON BY THE EXAMINER
The Examiner has relied upon the following sole reference as
evidence of unpatentability:
Pitts, Jr. (Pitts) US 5,591,317 Jan. 7, 1997
III. REJECTION
The Examiner has rejected claims 1 through 3 under 35 U.S.C.
§ 102(b) as anticipated by the disclosure of Pitts.
IV. DISCUSSION
As evidence of anticipation of the subject matter defined by claims
1 through 3 under 35 U.S.C. § 102(b), the Examiner has relied on the
disclosure of Pitts (Answer 3). The Examiner has found that Pitts describes
the claimed method, except for the claimed result, i.e., biofilm deposit
reduction (Answer 3). According to the Examiner (id.), such result would
inherently or necessarily occur in Pitts’ method since Pitts employs the
claimed apparatus and the claimed conditions and parameters to reduce scale
or sludge in a water system as discussed and claimed by the Appellants.
The Appellants do not dispute that Pitts, like the Appellants, employs
the claimed apparatus and the claimed conditions and parameters to reduce
scale or sludge in a water system (Br. 4-6 and Reply Br. 2-3). Compare also
Pitts’ water system at columns 1-3 with the Appellants’ water systems at
pages 1-6 of the Specification. Thus, notwithstanding the Appellants’
arguments to the contrary in the Reply Brief1, we find that the claimed
1 In any event, this argument was not timely raised in the opening Brief and
is considered waived. See Cross Med. Prods., Inc. v. Medtronic Sofamore
3
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