In re Reijers: Doctrine of Inherency Defeats Claim

Category: 102   
 By: Christian Hannon, Contributor  
TitleIn re Reijers, No. 2014-1052 (Fed. Cir. June 5, 2014) (non-precedential).
Issue[Whether] Braun [] disclose[s] a method for blowing liquid from a food product, as required by Claim 11.
In re Reijers at *5 (text added).
HoldingBecause substantial evidence supports the Board’s conclusion that Braun anticipates Claim 11 [because based on inherency, the device in Braun would necessarily blow liquid off a food product as part of its drying process].
Id. at *2 (text added).
Procedural HistoryAdrianus Johannes Maria Reijers appeals the decision of the United States Patent and Trademark Office’s Board of Patent Appeals and Interferences (“Board”) affirming the rejection of four claims of Reijers’s patent application. Reijers challenges the Board’s finding that independent Claim 11 is anticipated under 35 U.S.C. §102(b) by U.S. Patent No. 2,211,490 (“Braun”).
In re Reijers at *2.
Legal Reasoning (Prost, Taranto, Chen) (per curiam)
Reijers' Claim 11Reijers’s application claims a method of removing liquid from the surface of a “food strand.” The strand is moved through a series of “gas flows” or“gas knives” that blow liquid from the strand. Independent Claim 11 states: 11. Method for removing liquid from the surface of a food product, characterised [sic] in that the food product is supplied as a food strand, which food strand is successively carried through a plurality of gas flows wherein a supply means for gas is placed adjacently of a transport route of the food product and the supply means for gas are adapted to generate the plurality of gas flows crossing the transport route successivelyin the direction of transport wherein the separate gas flows originate from placed-apart slots to blow liquid from the food product in a number of phases by a number of suc-cessive and mutually separated gas knives.
In re Reijers at *2-3.
Braun Prior ArtSimilar to Claim 11 in Reijers’s application, the Braun patent claims a method for drying food products. Claim 5 reads: 5. A method of drying tubular structures which comprises inflating a tubular structure with a gas, then passing said tubular structure over a conduit and ejecting a hot gas from openings in said conduit directed towards said tubular structure in order to suspend said tubular structure in said hot gas and thereby dry the same. As an example of a “tubular structure,” Braun describes “artificial sausage skins, from solutions or fibrous masses of vegetable or animal origin.” Braun further discloses that the claimed conduit “openings” may take the form of “parallel continuous rows of openings separated by a small interval . . . .” The pressure of the gas ejected through the openings may be varied depending on the type of tubular product to be dried.
Id. at *3.
Standard of ReviewAnticipation is a question of fact, as is the subsidiary question of whether a prior art reference discloses—either expressly or inherently—a claim limitation. We uphold decisions of the Board on factual matters if there is substantial evidence in the record to support the Board’s findings. A finding is supported by substantial evidence if a reasonable mind might accept that evidence as adequate to support a conclusion. 
In re Reijers at *4 (internal citations omitted).
Inherent Disclosure May Serve as Basis for a Finding of AnticipationReijers’s principal argument on appeal is that Braun does not disclose a method for blowing liquid from a food product, as required by Claim 11. [...] We note that the Board did not find, and the Director need not show, that Braun expressly discloses the blowing of liquid from the surface of a sausage casing. The Board found that “gas flows originating from Braun’s slots/openings necessarily wouldblow liquid from food product in the course of achieving the drying objective desired by Braun.” We have long held that such inherent disclosure may serve as a basis for a finding of anticipation.
Id. at 5. (internal citations omitted).
Braun was sufficient evidence to reject claim 11.Based on the disclosures in Braun, we find that sufficient evidence exists for a reasonable mind to conclude that Braun would necessarily blow liquid off a food product as part of its drying process. The Board could reasonably conclude that Braun’s sausage casings—which, after all, need to be dried—necessarily include the presence of at least some liquid on their surface. And even if Braun did not contemplate using its claimed method specifically for blowing surface liquid off a sausage casing, its disclosure of ejected gas delivered at varying pressures [...] supports the Board’s conclusion that performing the method would result in blowing liquid off the casing.
Id. at *5-6. (internal citations omitted).
For the reasons stated above, the Board’s decision is affirmed.
In re Reijers at *7.

 Image Attribution Statement: Cecikierk, “Smoked Chinese Sausage,” image available as released to public domain by copyright holder, http://commons.wikimedia.org/wiki/File:Smoked_Chinese_sausage.jpg (last visited July 14, 2014) (image edited).
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