Appeal No. 2001-0628
Application No. 09/118,665
DISCUSSION
I. The 35 U.S.C. § 112, first paragraph, written description and
enablement rejections of claims 59 through 68, 70, 71, 75 through
80 and 84 through 91
The written description and enablement requirements of 35
U.S.C. § 112, first paragraph, are separate and distinct. Vas-
Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563, 19 USPQ2d 1111, 1117
(Fed. Cir. 1991). The test for compliance with the written
description requirement is whether the disclosure of the
application as originally filed reasonably conveys to the artisan
that the inventors 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. In
re Kaslow, 707 F.2d 1366, 1375, 217 USPQ 1089, 1096 (Fed. Cir.
1983). The content of the drawings may also be considered in
determining compliance with the written description requirement.
Id. Insofar as the enablement requirement is concerned, the
dispositive issue is whether the appellants’ disclosure,
considering the level of ordinary skill in the art as of the date
of the application, would have enabled a person of such skill to
make and use the claimed invention without undue experimentation.
In re Strahilevitz, 668 F.2d 1229, 1232, 212 USPQ 561, 563-64
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