Inherency May Not be Established by Probabilities and Possibilities

Haberman v. Gerber Products Company, [06-1490, 1516](May 29, 2007)[ROBINSON, Michel, Gajarsa] NON-PRECEDENTIAL The Federal Circuit reversed a determination of invalidity of U.S. Patent No. 6, 116,457 for anticipation, and reversed JMOL of validity.
BRIEF: The Federal Circuit held that Gerber failed to establish anticipation by clear and convincing evidence, rejecting Gerber's position that the prior art inherently taught the claimed invention. Extrinsic evidence can be used to filling in a gap in a reference, but it must make clear that the missing descriptive matter is necessarily present in the thing described in the reference, and that it would be so recognized by persons of ordinary skill in the art: inherency 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. The Federal Circuit remanded for consideration of obviousness. The Federal Circuit found that the trial court erred when it concluded no reasonable jury could have reached a verdict of no infringement.