Appeal No. 2001-2411
Application No. 08/879,422
specification.”). The rejection under 35 U.S.C. § 112, second paragraph, is
reversed.
3. Written description
“In order to satisfy the written description requirement, the disclosure as
originally filed does not have to provide in haec verba support for the claimed
subject matter at issue.” Purdue Pharma L.P. v. Faulding, Inc., 230 F.3d 1320,
1323, 56 USPQ2d 1481, 1483 (Fed. Cir. 2000). Nonetheless, the disclosure
must convey with reasonable clarity to those skilled in the art that the inventor
was in possession of the invention. See id.
The examiner rejected the claims as inadequately described because
“[t]here is no support in the specification as originally filed for the recitation of
‘with a functional immune system’ in claim 1.” Paper No. 19, mailed April 19,
2000, page 2. The examiner noted that none of the passages pointed to by
Appellants recites the claim limitation of a patient with a functional immune
system. See id., pages 2-3.
We find that the specification adequately describes the claimed method.
As discussed above, the record as a whole makes clear that a patient with a
functional immune system is simply an immunocompetent, as opposed to
immunodeficient, patient. The specification shows that Appellants were in
possession of the claimed method of treating a mammalian cancer patient having
a functional immune system, in the absence of an immunosuppressive agent.
See, e.g., Example 1, which is headed “Induction of specific anti-tumor immunity
by TALL-104 cells in immunocompetent mice bearing syngeneic leukemia.”
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