Appeal No. 2003-1569
Application No. 09/783,466
THE REJECTION
Claims 1, 2 and 5 through 11 stand rejected under 35 U.S.C.
§ 112, first paragraph, as being based on a specification which
fails to comply with the written description requirement.
Attention is directed to the appellants’ main and reply
briefs (Paper Nos. 13 and 16) and the examiner’s answer (Paper
No. 15) for the respective positions of the appellants and
examiner regarding the merits of this rejection.2
DISCUSSION
The test for compliance with the written description
requirement is whether the disclosure of the application as
originally filed reasonably conveys to the artisan that the
inventors 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). The content of the drawings may also be considered in
determining compliance with the written description requirement.
Id.
2 In the final rejection, claims 1, 2 and 5 through 11 also
stood rejected under 35 U.S.C. § 112, second paragraph, as being
indefinite. The examiner has since withdrawn this rejection (see
page 3 in the answer).
3
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