Appeal No. 1999-2548
Application No. 08/648,236
double patenting. However, we cannot sustain any of the other
rejections advanced by the examiner on this appeal. Our
reasons are set forth below.
The examiner’s provisional rejection of all appealed
claims under the doctrine of obviousness-type double patenting
has not been contested by the appellants on this appeal; see
the last paragraph on page 26 of the brief. Under these
circumstances, we will summarily sustain this provisional
rejection without further comment.
Concerning the examiner’s “written description” rejection
under the first paragraph of section 112, the test for
determining compliance with the written description
requirement is whether the disclosure of the application as
originally filed reasonably conveys to the artisan 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. In re
Kaslow, 707 F.2d 1366, 1375, 217 USPQ 1089, 1096 (Fed. Cir.
1983). With this test in mind, it is clear that the written
description requirement is not offended by the examiner’s
point that the original disclosure does not contain literal
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