Appeal No. 2002-0030 Page 13
Application No. 09/314,267
corresponding to the "means for connecting the torsion elements..." set forth in claims
1, 11 and 17 of the present application, it appears to me that he has, at least nominally,
complied with the requirements for a proper incorporation by reference under U.S. PTO
guidelines. As further spelled out in MPEP § 2163.07(b), the above information
incorporated by reference is as much a part of the application as filed as if the text was
repeated in the application, and should be treated as part of the text of the application
as filed. Support for this proposition is long standing, as for example in In re Lund, 376
F.2d 982, 989, 153 USPQ 625, 631 (CCPA 1967), wherein the Court noted that the
purpose of "incorporation by reference" is to make one document become a part of
another document by referring to the former in the latter in such a manner that it is
apparent that the cited document is part of the referencing document as if it were fully
set out therein. Indeed, in the Lund decision (376 F.2d at 989, 153 USPQ at 631) the
Court of Customs and Patent Appeals expressly recognized that subject to compliance
with 35 U.S.C. §§ 112 and 132, the disclosure in a patent application may be
deliberately supplemented or completed by reference to disclosure set forth in other
patents, to disclosure in earlier or concurrently filed copending applications, or, in
general, to disclosure which is available to the public.
In conclusion, it is my view that the Federal Circuit's decision in Atmel does not
set forth a per se rule that even a proper incorporation by reference of "essential
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