Appeal No. 2000-0920
Application No. 08/829,034
cermet suitable for bone replacement implants, “are . . . FDA
approved implant materials.” Assuming for the sake of argument
that the recitation of “FDA approved implant materials” denotes
materials approved by the United States Food and Drug
Administration as being safe for implantation in the human body,
it does not necessarily follow that a cermet made of FDA approved
materials would itself likewise be “an FDA approved cermet,” as
now claimed. This circumstance, coupled with the fact that
appellant has not pointed out where the disclosure as originally
filed provides descriptive support for a bone implant “fabricated
from an FDA approved cermet,” leads us to conclude that the
examiner’s position in this regard is well taken. We therefore
will sustain the examiner’s rejection of claims 11-18 under 35
U.S.C. § 112, first paragraph, as being based on an original
disclosure that does not comply with the written description
requirement.
The 35 U.S.C. § 112, second paragraph, rejection.
The test for compliance with the second paragraph of Section
112 is “whether the claim language, when read by a person of
ordinary skill in the art in light of the specification,
describes the subject matter with sufficient precision that
the bounds of the claimed subject matter are distinct.” In re
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