hiterference No. 105,019
Correa v. Roberts
In re Kaslow, 707 F.2d 1366,1375, 217 USPQ 1089, 1096 (Fed. Cir. 1983); In re Sm3qhe, 480
F.2d 1376,1382,178 USPQ 279, 284 (CCPA 1973); In re Anderso , 471 F.2d 1237, 1240, 176
USPQ 331, 333 (CCPA 1973). The issue is whether the specification reasonably conveys to the
artisan that the inventor had possession at the earlier time of the later claimed subject matter.
Ralston Purina Co. v. Far-Mar-Co., 772 F.2d 1570, 1575, 227 USPQ 177, 179 (Fed. Cir. 1985).
Based on the foregoing, at the time of filing of its involved application Roberts was not in
possession of the idea that the flap, i.e., something broad and flexible, or flat and thin, that hangs
loosely, attached at one side only, is comprised of the topsheet, the backsheet, and also the barrier
element. The specification of Roberts does describe that the barrier element can be attached to
the flap, but that does not constitute written description of the flap's being comprised of the
topshect, the backsheet, and also the barrier element. Not every means of attachment necessarily
results in the barrier element's taking part in the nature of flaps as flaps, and no means of
attachment sufficient to meet the claimed recitation is disclosed in the specification.
For the foregoing reasons, Correa's preliminary motion 3 is granted.
D. Correa's Preliminary Motion 4
By this preliminary motion, Correa asserts that claim 23 of Roberts is unpatentable under
35 U.S.C. § 102(a) and/or 102(e) over Correa's own involved patent, Patent No. 5,490,847. The
underlying basis of this preliminary motion is similar to that of Correa's preliminary motion 3.
The issue in dispute is not anticipation but written description in Roberts' parent application.
Correa asserts that because claim 23 of Roberts is without written description in Roberts' parent
application, the effective filing date for that claim is the actual filing date of Roberts' involved
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