Appeal No. 1996-2598
Application No. 08/220,212
specification states “only chemical agents that do not negatively impact the viability of L.
monocytogenes should be used in the medium of the invention and agents such as acriflavine are to be
avoided” and page 4 of the specification clearly discloses that phenylethanol inhibits repair of heat-
injured cells of Listeria (reply brief, page 2). We agree with appellants
that the originally filed disclosure supports excluding phenylethanol from the later claimed composition.
Literal support of the later claimed subject matter is not required. Id. The examiner has the initial
burden of establishing a prima facie case of lack of an adequate written description. In re Wertheim,
541 F.2d 257, 265, 191 USPQ 90, 98 (CCPA 1976). The examiner erred in not addressing
appellants’ explicit arguments based on pages 4 and 15. Thus, we will not sustain the rejection of
claims 5-10 on the basis of an inadequate written description and new matter. Having concluded that
the examiner has failed to establish a prima facie case of lack of an adequate written description, we
do not reach the rebuttal evidence discussed at pages 2-3 of appellants’ reply brief.
II. Rejection of claims 5 and 22 under 35 U.S.C. § 102 as anticipated by Blanco.
Blanco describes adding an agar overlay comprising red blood cells to a selective plating
medium after listeria growth in order to detect directly the hemolytic activity of pathogenic listeria
(abstract; page 126, col. 1, first full para.). Five selective media are disclosed, including
(1) modified McBride agar (MMA) (Lovett 1988), (2) lithium chloride-phenylethanol-moxalactam
(LPM), (3) polymyxin-acriflavine-lithium chloride-ceftazidime-aesculin-mannitol (PALCAM), (4)
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