Appeal No. 2001-2461
Application No. 08/855,059
introduces a new concept that lacks adequate written description
in the specification as originally filed. Ex parte Grasselli,
231 USPQ 393 (Bd. Pat. App. & Int. 1983), aff’d mem., 738 F.2d
453 (Fed. Cir. 1984).
The appellants argue that CVD copper was not used as the
barrier layer in the working examples of the present
specification and that it is therefore appropriate to exclude
CVD copper as the barrier layer. (Substitute appeal brief filed
Dec. 26, 2000, paper 31, page 7.) This argument lacks merit.
While the working examples might support the concept that TaNx or
sputtered aluminum may constitute the barrier layer, it does not
support the concept that the barrier layer excludes CVD copper.
The appellants cite Animal Legal Defense Fund v. Quigg, 932
F.2d 920, 923, 18 USPQ2d 1677, 1679-80 (Fed. Cir. 1991) as
controlling legal authority. (Substitute appeal brief filed
Dec. 26, 2000, pages 7-8.) In our view, the appellants’
reliance on this case is misplaced. The issue of whether a
negative limitation not supported by the originally filed
specification violates 35 U.S.C. § 112, first paragraph, was not
before the court in Animal Legal Defense Fund. The court merely
reproduced a U.S. Patent and Trademark Office Official Gazette
notice relating to an interpretation of 35 U.S.C. § 101.
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