Appeal No. 2003-1594 Page 4
Application No. 08/970,266
antibiotic resistance [gpt] [sic] be removed and shuttled to other
vectors.
Examiner’s Answer, page 4.
Appellants, pointing to the specification at page 6, lines 20-25, and page
7, lines 1-5, contend that the disclosure as filed “provides written description
support for the use of the selectable markers gpt and dhfr by general
descriptions of selectable markers, providing examples of vectors containing gpt
and dhfr, and noting the presence of gpt and dhfr in different vectors.” Appeal
Brief, page 6.
Page 6 of the specification states that (emphasis added):
Specifically designed vectors allow the shuttling of DNA
between hosts such as bacteria-yeast or bacteria-animal cells. An
appropriately constructed expression vector should contain: an
origin of replication for autonomous replication in host cells,
selectable markers, a limited number of useful restriction enzyme
sites, a potential for high copy number, and active promoters.
The paragraph bridging pages 6 and 7 provides examples of commercially
available mammalian expression vectors, wherein gpt and dhfr are among the
selectable markers used in those expression vectors.
To satisfy the written description requirement, the disclosure as originally
filed must convey with reasonable clarity to those skilled in the art that the
inventor was in possession of the invention. See Purdue Pharma L.P. v.
Faulding, Inc., 230 F.3d 1320, 1323, 56 USPQ2d 1481, 1483 (Fed. Cir. 2000).
We find that the disclosure as filed conveys to the skilled artisan that
appellants were in possession of the claimed invention, i.e., the use of the gpt
and dhfr as selectable markers in vectors other than those specifically listed in
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