LEMAIRE et al. V. WALLACH et al. - Page 11




              Interference No. 103,625                                                                                    
              USPQ2d at 1116; In re Wertheim, 541 F.2d 257, 262, 191 USPQ 90, 96 (CCPA 1976).                             
              The test for determining compliance with the written description requirement is whether the                 
              disclosure of the application, as originally filed, reasonably conveys to the skilled artisan               
              that the inventor had possession of the concept 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.  Vas-Cath, 935 F.2d at 1564, 19 USPQ2d at 1117; In re Kaslow, 707                           
              F.2d 1366, 1375, 217 USPQ 1089, 1096 (Fed. Cir. 1983); In re Smythe, 480 F.2d 1376,                         
              1384, 178 USPQ 279, 285  (CCPA 1973) and In re Anderson, 471 F.2d 1237, 1240, 176                           
              USPQ 331, 333  (CCPA 1973).  Satisfaction of the written description requirement does                       

              not require in haec verba antecedence in the originally filed application.  In re Lukach, 442               

              F.2d 967, 970, 169 USPQ 795, 797 (CCPA 1971).  How close the original description                           
              must come to comply with the description requirement of 35 U.S.C. 112 must be                               
              determined on a case-by-case basis.  In re Wilder, 736 F.2d 1516, 1520, 222 USPQ 369,                       
              372 (Fed. Cir. 1984).                                                                                       
              The German applications                                                                                     
                            The ‘072 application discloses a protein which has a molecular weight of                      
              about 42,000 daltons having at the N terminus the following amino acid sequence                             
                   1   2 3   4     5 6                                                                                    
              X TX YX X EX GSX X RLR which translates to                                                                  
                     1     2 3     4         5 6                                                                          
              X ThrX TryX X GluX GlySerX X ArgLeuArg                                                                      
                            where X is defined as oxygen, phenylalanine (Phe) or the amino acid                           
                           7 8         9 10                                        1  10                               
              sequence X X PheGlnX X .  When the ‘072 application was filed,  X -X  were not                              

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