Appeal No. 2003-0607
Application 09/532,968
invention, rather than the presence or absence of literal support
in the specification for the claim language. See Vas-Cath, Inc.
v. Mahurkar, 935 F.2d 1555, 1563-64, 19 USPQ2d 1111, 1116-17
(Fed. Cir. 1991) and In re Kaslow, 707 F.2d 1366, 1375, 217 USPQ
1089, 1096 (Fed. Cir. 1983). As explained by the Court in Vas-
Cath, 935 F.2d at 1563-64, 19 USPQ2d at 1117:
35 U.S.C. 112, first paragraph, requires a
“written description of the invention” which
is separate and distinct from the enablement
requirement. The purpose of the “written
description” requirement is broader than to
merely explain how to “make and use”: the
applicant must also convey with reasonable
clarity to those skilled in the art that, as
of the filing date sought, he or she was in
possession of the invention. The invention
is, for purposes of the “written description”
inquiry, whatever is now claimed.
. . . drawings alone may be sufficient
to provide the “written description of the
invention” required by § 112, first
paragraph.
The examiner has the initial burden of presenting evidence or
reasons why persons skilled in the art would not recognize in the
appellants’ disclosure a description of the invention defined by
the claims. See In re Wertheim, 541 F.2d 257, 265, 191 USPQ 90,
98 (CCPA 1976); Ex parte Sorenson, 3 USPQ2d 1462, 1463 (Bd. Pat.
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