Appeal No. 96-3512
Application 08/235,623
provision. See Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1561-
63, 19 USPQ2d 1111, 1115-17 (Fed. Cir. 1991) and In re Barker,
559 F.2d 588, 591, 194 USPQ 470, 472 (CCPA 1977), cert. denied,
434 U.S. 1064, 197 USPQ 271 (1978). Moreover, as the court
stated in In re Kaslow, 707 F.2d 1366, 1375, 217 USPQ 1089, 1096
(Fed. Cir. 1983):
The test for determining compliance with the written
description requirement is whether the disclosure of
the application as originally filed reasonably conveys
to the artisan that the inventor had possession at that
time of the later claimed subject matter, rather than
the presence or absence of literal support in the
specification for the claimed language. The content of
the drawings may also be considered in determining
compliance with the written description requirement.
(citations omitted)
Although the claimed invention does not necessarily have to be
expressed in ipsis verbus in order to satisfy the description
requirement (see In re Wertheim, 541 F.2d 257, 265, 191 USPQ 90,
98 (CCPA 1976)), it is nonetheless necessary that the disclosed
apparatus inherently perform the functions now claimed (see In re
Smythe, 480 F.2d 1376, 1383, 178 USPQ 279, 284 (CCPA 1973)).
Precisely how close the original description must come to comply
with the description requirement must be determined on a case-by-
case basis. The primary consideration is factual and depends on
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