Appeal No. 1999-2240
Application 08/909,349
19 UPSQ2d 1111, 1115 (Fed. Cir. 1991), citing In re Smith,
481 F.2d 910, 914, 178 USPQ 620, 623 (CCPA 1973). "Although
the exact terms need not be used in haec verba, . . . the
specification must contain an equivalent description of the
claimed subject matter." Lockwood v. American Airlines, 107
F.3d 1565, 1572, 41 USPQ2d 1961, 1966 (Fed. Cir. 1997).
Written description is a question of fact. Vas-Cath,
935 F.2d at 1563, 19 USPQ2d at 1116.
The Examiner finds a lack of written description in the
specification for the limitation "said predetermined data
area being smaller than said data area available for
recording the data" as recited in independent claims 1, 5,
7, and 9.
Appellants point to portions of the specification which
describe that the amount of data to be recorded is divided
into two substantially equal portions which are recorded to
the two recording layers such that the final end of data
from the first layer and the start end of data from the
second layer are at approximately the same radial position
(Br11). In this way, the divided data portions are recorded
to the recording layers almost symmetrically, regardless of
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