Appeal No. 1999-0778
Application No. 08/710,685
Kennecott the court found that although the priority
application did not mention equiaxed microstructure, it was
undisputed conceded that the method in the priority
application invariably produced this microstructure and that
the product in all thirty of the relevant examples had this
microstructure. See Kennecott, 835 F.2d at 1420, 5 USPQ2d at
1196. Accordingly, the court found that the priority
application provided adequate written descriptive support for
“a predominantly equiaxed microstructure” recited in the
claims of the patent in suit. See Kennecott, 835 F.2d at
1421-22, 5 USPQ2d at 1197.
In the present case, however, it has not been established
that the claimed ingots or billets invariably have no
substantial porosity. The appellants rely upon only one
example within the scope of their claims and have not
established that this example is representative of the ingots
or billets encompassed by these claims. In this example the
ingot is made of AZ 91 alloy having dissolved therein 0.5 wt%
calcium and 0.5 wt% zinc (declaration, page 2). The
appellants’ broadest claim, however, encompasses the use of 1)
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