Appeal No. 2003-1561 Page 5
Application No. 09/632,840
about 1.5 minute” chewing time limitation as recited in
appellants’ claims 42 and 46.
Appellants argue that the original specification as a whole,
particularly page 16, line 6 and page 4, lines 6-10 of the
specification, furnish descriptive support for the chewing time
range recited in claims 42 and 46. However, as correctly
explained by the examiner, the original specification disclosure
of chewing times “as long as 1.5 minutes” as reported at page 16,
line 6 designates the 1.5 minute mark as an upper time limit or
maximum time, not a minimum time that can be exceeded without any
upper limit, as now claimed.
We find no persuasive evidence in the original filed
application, including the specifically referred to lines 6-10 of
specification page 4, that establishes that applicants were in
possession of the new concept embraced by the chewing time range
specified in claims 42 and 46.1 Thus, we concur with the
examiner that the claim limitation in question violates the
written description requirement within the meaning of 35 U.S.C.
§ 112, first paragraph. See, e.g., Quantum Corp. V. Rodime PLC,
65 F.3d 1577, 1581, 36 USPQ2d 1162, 1165 (Fed. Cir.1995) cert.
1 Claims 42 and 46 were added by amendment after the filing
date of the application.
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