Appeal 2007-0656
Application 10/653,584
Rejection,” Appellant requested that the appeal be maintained in his Reply
Brief (Reply Br. 1).
35 U.S.C. § 112, 1st PARAGRAPH, REJECTION FOR LACK OF
WRITTEN DESCRIPTION FOR THE ADDED PHRASE “THINNER
THAN THE INNER LAYER”
Appellant argues that Figure 2 provides descriptive support for the
claim feature that the “peel-seal layer is thinner than the inner layer” (Br.
4-6).
We cannot sustain the Examiner’s § 112, 1st paragraph, written
description rejection concerning the claim phrase “is thinner than the inner
layer” for the reasons below.
Generally, features clearly shown by patent drawings cannot be
disregarded. In re Mraz, 455 F.2d 1069, 1072, 173 USPQ 25, 27 (CCPA
1972). In addition, when assessing whether a drawing provides descriptive
support for a claim feature the “legitimate enquiry in each case . . . is what
the drawing in fact discloses to one skilled in the art.” In re Wolfensperger,
302 F.2d 950, 955, 133 USPQ 537, 542 (CCPA 1962). Figures that
consistently show the same relative proportions cannot be ignored.
Wolfensperger, 302 F.2d at 959, 133 USPQ at 545.
Appellant’s Figure 2 clearly demonstrates that the relative dimension
(i.e., thickness) of the peel-seal layer is thinner than the inner layer. This
particular disclosure by Appellant in his drawings cannot be disregarded.
Mraz, 455 F.2d at 1072, 173 USPQ at 27. Moreover, Figures 2 and 3
consistently show the same relative proportions for the various layers in the
closure (30) and cannot be ignored. Wolfensperger, 302 F.2d at 959, 133
USPQ at 545.
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