Appeal No. 95-2896 Page 5
Application No. 07/977,771
The examiner has stated that descriptive support in the
original disclosure could not be found because of "... the
failure of appellant to clearly set forth if the invention
will work. The term 'believes' cannot be considered an [sic]
clear and exact written description of the invnetion [sic,
invention]" (answer, page 10).
Insofar as the written description requirement is
concerned, the examiner has the initial burden of presenting
evidence or reasons why persons skilled in the art would not
recognize in the disclosure a description of the invention
defined by the claims. See In re Alton, 76 F.3d 1168, 1175,
37 USPQ2d 1578, 1583 (Fed. Cir. 1996). The examiner’s finding
of lack of descriptive support for the appealed claims is
without merit for two reasons. First, the original claims
provide literal support for themselves See In re Anderson,
471 F.2d 1237, 1238-39, 176 USPQ 331, 332 (CCPA
1973)(unamended original claim is a part of the original
disclosure). Second, the examiner has not clearly explained
how a lack of descriptive support under 35 U.S.C. § 112, first
paragraph is established by appellant's use of the term
"believe" in the specification and the examiner's concern with
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