Appeal 2007-1463 Page 8
Application 10/083,492
Lockwood v. American Airlines, Inc., 107 F.3d at 1572, 41 USPQ2d at 1966
(emphasis original).
3. Compliance with the written description requirement is a question of fact.
Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1575, 227 USPQ 177, 179
(Fed. Cir. 1985).
D. Analysis
The issue of whether Appellants have shown error in the Examiner’s
rejection on the grounds that the Specification does not reasonably convey to those
skilled in the relevant art that the inventors, at the time the application was filed,
had possession of the claimed retaining assembly wherein said single plate is the
only plate of the retaining assembly having said predetermined size and shape, the
retaining assembly thereby not including a second plate having said predetermined
size and shape applies only to claims 35-37.
The issue with respect to claims 38, 40, and 41 is whether the Specification
reasonably conveys to those skilled in the relevant art that the inventors, at the time
the application was filed, had possession of the claimed retaining assembly
wherein the plate has a predeterminate size and said plate being the one and only
plate of said assembly having said predeterminate size and shape. We note the use
of the open-ended term "comprising" in claim 35, both in the preamble and
immediately preceding the recitation of a single plate, and the absence of an
express limitation excluding the presence of another such plate. A retaining
assembly wherein the plate has a predeterminate size and said plate being the one
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