Appeal No. 1997-3524 Page 5
Application No. 08/336,402
language in limiting the porous body as specified in claim 6
reasonably sets forth a limitation of the porous body as to the
structure thereof that would be understood by one of ordinary
skill in the art. Consequently, the examiner has not established
how claim 6 runs afoul of the provisions of the second paragraph
of 35 U.S.C. § 112.
In sum, the examiner has not explained why the language of
claim 6, as it would have been interpreted by one of ordinary
skill in the art in light of appellants’ specification and the
prior art, fails to set out and circumscribe a particular area
with a reasonable degree of precision and particularity.
Consequently, we reverse the rejection under 35 U.S.C. § 112,
second paragraph.
Rejection under § 112, first paragraph
We note that whether a specification complies with the
written description requirement of 35 U.S.C. § 112, first
paragraph, is a question of fact. Gentry Gallery Inc. v.
Berkline Corp., 134 F.3d 1473, 1479, 45 USPQ2d 1498, 1502 (Fed.
Cir. 1998); In re Alton, 76 F.3d 1168, 1175, 37 USPQ2d 1578, 1583
(Fed. Cir. 1996). The test for determining compliance with the
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