Appeal 95-4477
Application 08/006,350
Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d
1570, 1575, 227 USPQ 177, 179 (Fed. Cir. 1985).
"Precisely how close the original description must
come to comply with the description requirement of
§ 112 must be determined on a case-by-case basis."
Vas-Cath, 935 F.2d at 1561, 19 USPQ2d at 1116.)
We have not been able to find anything in the
specification, as filed, which expressly describes the now
claimed A:B ratio of "about >10:1 to 15:1." As Eiselstein v.12
Frank notes, however, subsequent claim language need not
appear in the specification in exactly the same words. Under
the precise facts of this case, however, we have not been able
to find anything which would constitute a description of the
ratio "about >10:1 to 15:1."
It is true, as applicant maintained in response to the
final rejection, that "the claimed range of >10:1 and 15:1"
falls within the A:B ratio of the formulations described in
the chart on page 16 of the specification.
Applicant's argument is similar to an argument which was
accepted by the CCPA in In re Wertheim, 541 F.2d 257, 265, 191
Applicant's former practitioner failed to explain how the limitation actually12
inserted in the claim avoided the A:B ratio of Schaefer.
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