Appeal No. 2001-1002
Application No. 08/709,963
We refer to the brief and reply brief and to the answer for
a thorough exposition of the contrary viewpoints expressed by the
appellants and by the examiner concerning the above noted
rejections.
OPINION
We will sustain the examiner’s Section 112 rejection but not
her Section 103 rejection. Our reasons follow.
Concerning the Section 112 rejection, 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. In re Kaslow, 707 F.2d
1366, 1375, 217 USPQ 1089, 1096 (Fed. Cir. 1983).
When applied to the factual circumstances of record, this
test reveals that the originally filed disclosure of the subject
application would not reasonably convey to an artisan that the
appellants had possession on the application filing date of the
now claimed subject matter defined by claims 4 and 21-23 wherein
the thickening agent starch is defined as “non-pregelatinized.”
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