Appeal No. 2002-1593
Application 09/091,020
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 appellant's application, would have enabled a person of
such skill to make and use the appellants’ invention without
undue experimentation. In re Strahilevitz, 668 F.2d 1229, 1232,
212 USPQ 561, 563-64 (CCPA 1982). In calling the enablement of
the appellants’ disclosure into question, the examiner has the
initial burden of advancing acceptable reasoning inconsistent
with enablement. Id.
The appellants’ disclosure describes the claimed peripheral
cam in terms of the valve acceleration course associated
therewith. The examiner has failed to advance any factual
support or cogent line of reasoning for the proposition that this
disclosure, considering the level of ordinary skill in the art as
of the date of the appellants’ application, would not have
enabled a person of such skill to make and use the invention
recited in the appealed claims without undue experimentation.
Therefore, we shall not sustain the standing 35 U.S.C.
§ 112, first paragraph (enablement), rejection of claims 7
through 19.
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