Written Description
Van Engelen argues that Lee's specification fails to provide support for (1) a second
frame that is "dynamically isolated" from a first frame (motion 1), (2) a machine frame which,
seen parallel to a vertical Z-direction, supports in that order a radiation source (motion 2) and (3)
a stationary part of the drive unit fastened to a second frame (motion 2).
Lee claims 4 and 6 are original claims that were filed the day the involved '762
application was filed. Lee claims 4 and 6 recite all of the limitations that van Engelen asserts are
not described in Lee's specification. Lee claim 5 depends from claim 4 and was amended.
However, the limitations that van Engelen asserts that the Lee '762 application does not describe
are in Lee claims 4 and 6 and not in amended Lee claim 5.
It is well established that original claims, in unamended form are a part of the original
specification as filed. See In re Koller, 613 F.2d 819, 823, 204 USPQ 702, 706 (CCPA 1980); in
re Gardner, 475 F.2d 1389, 1391, 177 USPQ 396, 397 (CCPA 1973). To the extent that van
Engelen is relying on the specification of Lee's parent applications to make the argument that the
involved Lee specification does not provide written description support for Lee claims 4-6 under
35 U.S.C. § 112, first paragraph, that is improper. See Reiffin v. Microsoft, 214 F.3d 1342,
1346, 54 USPQ2d 1915, 1918 (Fed. Cir. 2000). Accordingly, that portion of van Engelen's
preliminary motions I and 2 seeking judgment against Lee on the basis that Lee's involved
claims 4-6 lack written description support under 35 U.S.C. § 112, 11 is denied.
Indefiniteness
Van Engelen additionally argues that Lee's claims 4-6 are unpatentable under 35 U.S.C.
§ 112, T 2. Van Engelen argues that should the board determine that Lee's claims 4-6 are
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Last modified: November 3, 2007