Appeal 2007-3382
Application 10/040,288
claims in patent applications not solely on the basis of the claim language,
but upon giving claims their broadest reasonable construction in light of the
specification as it would be interpreted by one of ordinary skill in the art. In
re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364, 70 USPQ2d 1827,
1830 (Fed. Cir. 2004). The properly interpreted claim must then be
compared with the prior art.
“It is well settled that a prior art reference may anticipate when the
claim limitations not expressly found in that reference are nonetheless
inherent in it. Under the principles of inherency, if the prior art necessarily
functions in accordance with, or includes, the claimed limitations, it
anticipates.” In re Cruciferous Sprout Litig., 301 F.3d 1343, 1349, 64
USPQ2d 1202, 1206 (Fed. Cir. 2002) (citations and internal quotation marks
omitted). "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, 1951 (Fed. Cir. 1999) (citations and internal quotation marks
omitted).
Here, Appellant has not presented argument as to the deficiencies of
any of the prior art teachings in a comparison to the language of the
independent claims on appeal. Therefore, we find that the invention is
taught by the teachings of Flick ‘946. Appellant’s sole contention is that the
Flick ‘946 reference does not qualify as prior art under 35 U.S.C. § 102(e)
since the application was filed, as a CIP application, after the filing date of
the instant application (Br. 5-6 Reply Br. 2).
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Last modified: September 9, 2013