Appeal 2007-1854
Application 10/920,345
exposure because tire damage is related to the tire temperature experienced
and the duration of the high temperature exposure (Aubel, col. 4, ll. 5-16).
Notwithstanding this difference in how the claimed device and the
system of Aubel function and the Examiner’s further admission that the
computer of Aubel is programmed differently (to the extent computers are
implied in the claimed processing determinations), the Examiner maintains
that this programmed computer difference would not differentiate the
claimed apparatus from the applied system of Aubel. We disagree for
essentially the reasons stated by Appellants in the Brief and Reply Brief (Br.
9-10; Reply Br. 2-4).
In short, the Examiner has not fairly explained how Aubel, either
explicitly or inherently, describes a tire warning device having a processing
section with the capability of determining when the second of the above–
identified claimed circumstances (the temperature rise over a unit of time
value exceeds a predetermined threshold value for a rate of temperature
increase) exists together with a warning section coupled to such a processing
section in a manner such that a warning would be issued upon determination
of the existence of such a circumstance.
The factual determination of anticipation requires the disclosure in a
single reference of every element of the claimed invention, either explicitly
or inherently. See In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429,
1431 (Fed. Cir. 1997). It is also well-settled that an Examiner may shift the
burden to Appellants by showing how a prior art structure substantially
corresponds to a claimed structure such that it would be reasonable to
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