Appeal No. 1998-3049
Application No. 08/463,558
OPINION
We have carefully reviewed the claims, specification and prior
art, including all of the evidence and arguments advanced by both
the examiner and appellants in support of their respective
positions. This review leads us to conclude that only the
examiner’s obviousness-type double patenting rejection is well
founded. Accordingly, we will sustain only that rejection. Our
reasons follow.
WRITTEN DESCRIPTION REJECTION
The examiner has rejected claims 18 through 23, 25 through 30
and 32 through 41 under 35 U.S.C. § 112, first paragraph, as being
based upon a disclosure which fails to satisfy the written
description requirement of that paragraph. See Answer, page 6.
According to the examiner (Id.), the phrase “as the only bleaching
agent, ozone” is not literally described in the application
disclosure as originally filed.
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
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