Interference No. 103,625
USPQ2d at 1116; In re Wertheim, 541 F.2d 257, 262, 191 USPQ 90, 96 (CCPA 1976).
The test for determining compliance with the written description requirement is whether the
disclosure of the application, as originally filed, reasonably conveys to the skilled artisan
that the inventor had possession of the concept at that time of the later claimed subject
matter, rather than the presence or absence of literal support in the specification for the
claim language. Vas-Cath, 935 F.2d at 1564, 19 USPQ2d at 1117; In re Kaslow, 707
F.2d 1366, 1375, 217 USPQ 1089, 1096 (Fed. Cir. 1983); In re Smythe, 480 F.2d 1376,
1384, 178 USPQ 279, 285 (CCPA 1973) and In re Anderson, 471 F.2d 1237, 1240, 176
USPQ 331, 333 (CCPA 1973). Satisfaction of the written description requirement does
not require in haec verba antecedence in the originally filed application. In re Lukach, 442
F.2d 967, 970, 169 USPQ 795, 797 (CCPA 1971). How close the original description
must come to comply with the description requirement of 35 U.S.C. 112 must be
determined on a case-by-case basis. In re Wilder, 736 F.2d 1516, 1520, 222 USPQ 369,
372 (Fed. Cir. 1984).
The German applications
The ‘072 application discloses a protein which has a molecular weight of
about 42,000 daltons having at the N terminus the following amino acid sequence
1 2 3 4 5 6
X TX YX X EX GSX X RLR which translates to
1 2 3 4 5 6
X ThrX TryX X GluX GlySerX X ArgLeuArg
where X is defined as oxygen, phenylalanine (Phe) or the amino acid
7 8 9 10 1 10
sequence X X PheGlnX X . When the ‘072 application was filed, X -X were not
11
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