Appeal No. 2004-1433 Application No. 09/639,303 at the time the application was filed, had possession of the claimed invention."1 Reference is made to the Final Rejection (Paper No. 6, mailed June 17, 2002) and the Examiner's Answer (Paper No. 17, mailed July 15, 2003) for the examiner's complete reasoning in support of the rejections, and to appellants' Brief (Paper No. 16, filed April 28, 2003) for the appellants' arguments thereagainst. OPINION We have carefully considered the claims and the respective positions articulated by appellants and the examiner. As a consequence of our review, we will reverse the written description rejection of claims 1, 3, 4, 28, 30, and 31. The examiner rejects claims 1, 3, 4, 28, 30, and 31 under 35 U.S.C. § 112, first paragraph, for a lack of an adequate written description. However, the explanation that follows the statement of the rejection (Final Rejection, page 3) is more akin to a lack of enablement. According to Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563/64, 19 USPQ2d 1111, 1117 (Fed. Cir. 1991), 1 We note that although the examiner states (Answer, page 3) that claims 1 through 5, 8, 10 through 13, 16, 28 through 32, and 35 through 39 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Mattes (U.S. Patent No. 5,118,134), the examiner states (Answer, page 5) that appellants' arguments are persuasive and the rejection has been withdrawn. Accordingly, we consider the rejection to be withdrawn. 3Page: Previous 1 2 3 4 5 6 7 NextLast modified: November 3, 2007