Appeal No. 1995-1703
Application 07/897,304
The first rejection rests on the examiner’s determination
(see page 5 in the main answer) that the appellants’
specification fails to comply with the written description
requirement of 35 U.S.C. § 112, first paragraph, with respect
to the recitation in claim 21 that the outer tubing layer has
a “maximum destructive elongation value” of at least 150%.
The appellants counter that “elongation value is commonly
referred to as elongation value at break and that one skilled
in the art would understand this from the specification taken
in its entirety” (main brief, page 20).
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 claim
language.
In re Kaslow, 707 F.2d 1366, 1375, 217 USPQ 1089, 1096 (Fed.
Cir. 1983).
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