Appeal No. 2002-1666
Application 09/394,289
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.
Although the appellants contend (see pages 10 and 11 in the
main brief) that the original disclosure provides the requisite
support for claim limitation at issue in the discussion of the
fluid tip element 70 and air cap 90 on specification page 15,
line 3 et seq., they also have submitted a proposed amendment
(Paper No. 21) “for curing the defect noted by the Examiner”
(reply brief, page 1). The examiner, however, has refused entry
of this amendment (see Paper No. 22), and the part of the
specification relied on by the appellants does not in fact
describe the circular shaped member (main body 78) of the fluid
tip element (70) as abutting the inner surface of the air cap
(90). In essence, the remarks contained in the reply brief and
in the proposed amendment concede the existence of the problem
addressed by the examiner’s rejection. Hence, the appellants’
argument that the disclosure of the application as originally
filed would reasonably convey to the artisan that the appellants
had possession at that time of the subject matter now recited in
claim 1 is not persuasive.
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