Appeal No. 2003-1974
Application 09/317,409
honey comb core in appealed claim 57 involves a different concept than the “tie down” for the
prepreg plies in the specification. Thus, we are of the opinion that the exclusion of a tie down
which is not described to one of ordinary skill in this art in the written description in the
specification and not the tie down that is described therein, adds a negative limitation involving a
new concept to the claimed invention which violates § 112, first paragraph, written description
requirement.
We are not convinced otherwise by appellants’ arguments (brief, pages 3-6). Appellants
at once argue that a negative limitation which is not found at all in the specification is
permissible and that the specification provides a basis for the negative limitations in stating that
tie downs are to be avoided. Indeed, in view of the different types of tiedowns known in the art,
the elimination of one type but not the other does not support appellants’ contention that “[t]he
use of stiffened fabric instead of, not in addition to tie down plies is, as set forth above, clearly
conveyed by the present specification” (id., page 5).
Accordingly, on this record, we affirm the ground of rejection based on 35 U.S.C.
§ 112, first paragraph, written description requirement.
The examiner’s decision is affirmed.
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