Appeal No. 2002-1358
Application No. 09/467,903
vacuum, but always in light of the teachings of the prior art and of the particular
application disclosure as it would be interpreted by one possessing the ordinary skill in
the pertinent art.” In re Moore, 439 F.2d 1232, 1235, 169 USPQ 236, 238 (CCPA
1971). [Emphasis added.]
Our reviewing court has held in Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563,
19 USPQ2d 1111, 1116 (Fed. Cir. 1991) that:
[a] fairly uniform standard for determining compliance with
the "written description" requirement has been maintained
throughout: "Although [the applicant] does not have to
describe exactly the subject matter claimed, ... the
description must clearly allow persons of ordinary skill in the
art to recognize that [he or she] invented what is claimed."
In re Gosteli, 872 F.2d 1008, 1012, 10 USPQ2d 1614, 1618
(Fed. Cir. 1989) (citations omitted). "[T]he test for
sufficiency of support in a parent application is whether the
disclosure of the application relied upon 'reasonably conveys
to the artisan that the inventor had possession at that time of
the later claimed subject matter.'" Ralston Purina Co. v. Far-
Mar-Co, Inc., 772 F.2d 1570, 1575, 227 USPQ 177, 179
(Fed. Cir. 1985) (quoting In re Kaslow, 707 F.2d 1366,
1375, 217 USPQ 1089, 1096 (Fed. Cir. 1983)).
Appellants argue that the subject matter of the claims need not be literally
supported in the specification to meet the written description requirement. Brief, page
6.
Appellants argue (Brief, page 6):
Applicants believe that the specification clearly teaches one skilled in the
art how to use the claimed antibody fragments, such as Fab'. Further,
Applicants also strongly believe that it is well known to one skilled in the
art how to use other antibody fragments, such as F(ab')2 in view of the
state of the art at the time of the priority date of the present application.
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