Appeal No. 2000-0286 Page 6
Application No. 08/704,031
34 USPQ2d 1467, 1470 (Fed. Cir. 1995) (quoting Vas-Cath, 935
F.2d at 1561, 19 USPQ2d at 1116).
The examiner determined (final rejection, p. 3) that
claims 8 to 12 violated the written description requirement of
the first paragraph of 35 U.S.C. § 112 due to the
inconsistency of the description of the second elastic
material (e.g., the claimed second elastic material
referencing elastically stretchable members 15 while the
specification referred to the second elastically stretchable
members by reference number 14). The appellants admit (brief,
p. 5) that there is an inconsistency between the terminology
used in the claims under appeal and the specification and
state that the are willing to file an amendment to make the
claims consistent with the specification. The appellants 2
then go on to argue that notwithstanding the inconsistencies,
the claims under appeal are described in the original
specification in a way as to reasonably convey to one skilled
2Notwithstanding our reversal of this ground of
rejection, we encourage the appellants to file such an
amendment.
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