Interference No. 103,029
The written description requirement is a fact-
specific issue. See, e.g., In re Wertheim, 541 F.2d 257, 262,
191 USPQ
90, 96 (CCPA 1976)("The primary consideration is factual and
depends on the nature of the invention and the amount of
knowledge imparted to those skilled in the art by the
disclosure"); and Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555,
1562, 19 USPQ2d 1111, 1116 (Fed. Cir 1991). As with all
preliminary motions, the burden is on the moving party--in
this instance Kipouras--to prove entitlement to benefit by a
preponderance of the evidence. See Behr v. Talbott, 27 USPQ2d
1401, 1405 (Bd. Pat. App. & Int. 1992); Kubota v. Shibuya, 999
F.2d 517, 522, 27 USPQ2d 1418, 1422 (Fed. Cir. 1993).
Kipouras has moved for benefit of the filing date of
the Federl Patent No. 4,588,773. The question presented is
whether one of ordinary skill would have understood that the
specific embodiment examples of columns 4 and 5 of the patent
are embodiments within the scope of the count in this
14
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