Appeal 2007-2682
Application 10/326,410
Co., 242 F.3d 1376, 1383, 58 USPQ2d 1286, 1291 (Fed. Cir. 2001).
Anticipation can be found when a claim limitation is inherent or otherwise
implicit in the relevant reference. Standard Havens Products, Inc. v. Gencor
Industries, Inc., 953 F.2d 1360, 1369, 21 USPQ2d 1321, 1328 (Fed. Cir.
1991). For establishing inherency, that which is missing in the express
description must necessarily be present. Continental Can Co. USA, Inc. v.
Monsanto Co., 948 F.2d 1264, 1268, 20 USPQ2d 1746, 1749 (Fed. Cir.
1991). Once a prima facie case of anticipation by inherency has been
established, however, the burden shifts to the applicants to prove that the
subject matter shown in the prior art does not possess the characteristics
relied on by the Examiner. In re King, 801 F.2d 1324, 1327, 231 USPQ
136, 138 (Fed. Cir. 1986). The Patent and Trademark Office is not equipped
to prove any assertion by way of conducting experiments. In re King, 801
F.2d at 1327, 231 USPQ at 139.
F. Analysis
The two independent claims are claims 24 and 34. Claim 24 includes
all of the recited features of claim 34, and adds a further step of “displaying
the damage factor in a cab of the machine.” The following four steps are
recited in both claims 24 and 34:
sensing at least one property associated with the
machine;
maintaining a data structure in a memory element that
determines a damage factor indicative of an instantaneous stress
applied to the component based at least in part on the at least
one property; and
processing the data structure to determine the damage
factor based on the at least one property;
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