Appeal 2007-1297
Application 10/082,235
976 F.2d 1559, 1565, 24 USPQ2d 1321, 1326 (Fed. Cir. 1992). Anticipation
of a patent claim requires a finding that the claim at issue “reads on” a prior
art reference. Atlas Powder Co. v. IRECO, Inc., 190 F.3d 1342, 1346, 51
USPQ2d 1943, 1945 (Fed Cir. 1999) (“In other words, if granting patent
protection on the disputed claim would allow the patentee to exclude the
public from practicing the prior art, then that claim is anticipated, regardless
of whether it also covers subject matter not in the prior art.”) (internal
citations omitted).
ANALYSIS
With respect to the 35 U.S.C. § 102(a) rejection of independent claims
1 and 10 based on the teachings of Curtis, the Examiner indicates (Answer
3-6) how the various limitations are read on the disclosure of Curtis. In
particular, the Examiner directs attention to the illustrations in Figures 2 and
4 of Curtis, as well as the disclosure at column 9, lines 45-53, column 10,
lines 24-30, column 11, lines 20-49, and column 18, lines 44-59 of Curtis.
In our view, the Examiner’s analysis is sufficiently reasonable that we
find that the Examiner has as least satisfied the burden of presenting a prima
facie case of anticipation. The burden is, therefore, upon Appellant to come
forward with evidence and/or arguments which persuasively rebut the
Examiner’s prima facie case. Only those arguments actually made by
Appellant have been considered in this decision. Arguments which
Appellant could have made but chose not to make in the Briefs have not
been considered and are deemed to be waived [see 37 C.F.R.
§ 41.37(c)(1)(vii)].
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