Appeal No. 1997-4264
Application No. 08/421,131
that the inventor had possession at that time of the later
claimed subject matter, 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).
The examiner has the initial burden of presenting
evidence or reasons why persons skilled in the art would not
recognize in the appellant's 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. App. & Inter. 1987). This the
examiner has not done. In any event, it is our opinion that
the language of claims 1 and 11 in dispute (i.e., "said distal
edge of said containment flap is rendered elastically
contractible by said at least one elastomeric thread to
position said distal edge in said spaced relation") is
described in the original disclosure for the reasons set forth
on pages 4 and 5 of the appellant's brief. The
examiner has not identified any language in claims 17 through
20 that is unsupported by the original disclosure.
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