Appeal No. 1998-0318 Page 4
Application No. 08/539,466
The examiner’s problem with claims 40-57 is grounded in the fact that some of the
subject matter now set forth in claims 40 and 41, namely, the liquid level sensing and
control system, was not disclosed in the specification as originally filed. The examiner
points out that this feature is based upon Figure 9 and the explanation of it which later was
entered into the specification (Papers No. 13 and 16), and takes the position that the
specification thus would not have conveyed to one skilled in the art that the appellants had
possession of the invention, as presently claimed, when the application was filed
(Supplemental Answer, pages 4, 5 and 10-12). The appellants argue in rebuttal that the
added material is found in Keiter U.S. Patent No. 5,178,019, which was incorporated by
reference into the specification on page 1, and that therefore the insertion of material from
this reference into the present application “is proper” (Brief, page 6). However, we find
ourselves in agreement with the examiner, and the rejection of claims 40-57 under Section
112 is sustained. Our reasoning follows.
Independent claim 40 recites the step of “automatically lowering the automated
probe . . . [until] a liquid level sensor detects that the probe has reached the fluid sample,
whereupon a control signal is sent . . . to move said probe past the surface of said fluid
sample a predetermined distance.” Dependent claim 41 adds the limitation that the liquid
sensor is “a capacitive liquid level sensor which measures a change in capacitance
between said automated probe and the chassis of said automated analyzer.” There is
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