Appeal No. 2002-0331
Application No. 09/382,735
The description issue
We do not sustain the rejection of claims 9 through 11 and
13 through 15 under 35 U.S.C. § 112, first paragraph, as lacking
descriptive support in the original disclosure.
That one skilled in the art might realize from reading a
disclosure that something is possible is not a sufficient
indication to that person that the something is part of an
appellant's invention. See In re Barker, 559 F.2d 588, 591, 194
USPQ 470, 472 (CCPA 1977), cert. denied, 434 U.S. 1064 (1970).
The test for determining compliance with the written description
requirement is whether the disclosure of the application as
originally filed reasonably conveys to the artisan that the
inventor had possession at that time of the later claimed subject
matter, rather than the presence or absence of literal support in
the specification for the claim language. Further, the content
of the drawings may also be considered in determining compliance
with the written description requirement. See Vas-Cath Inc. v.
Mahurkar, 935 F.2d 1555, 1562-63, 19 USPQ2d 1111, 1116 (Fed. Cir.
1991) and In re Kaslow, 707 F.2d 1366, 1375, 217 USPQ 1089, 1096
(Fed. Cir. 1983).
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