Appeal No. 2006-1246 Page 4
Application No. 09/726,372
skilled in the art that, as of the filing date sought, the inventor was in possession of the
invention. See Vas Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563 64, 19 USPQ2d 1111,
1117 (Fed. Cir. 1991); In re Kaslow, 707 F.2d 1366, 1375, 217 USPQ 1089, 1096 (Fed.
Cir. 1983); In re Edwards, 568 F.2d 1349, 1351 52, 196 USPQ 465, 467 (CCPA 1978); In
re Wertheim, 541 F.2d 257, 262, 191 USPQ 90, 96 (CCPA 1976).
It is the Examiner's position that the following phrase of independent claims 28 and
55 is not described in the specification as originally filed: “that the temperature at [outer]
surface of the plastic [(14) of the coextrudate of the plastic] (14) and the adhesion-
promotion agent (16) lies below the crystallite melt point (TK) of the plastic (14).” See
Answer, page 3.
Appellants’ argue, Brief pages 37-38, the following statement filed in the
November 26, 2002 amendment establishes written descriptive support for the
amendment to the record:
"Applicants extrude a coextrudate onto the aluminum foil and then
heat the aluminum foil with the coextrudate thereon by continuously
passing it through an oven at a temperature set so that the temperature
of the surface of the polypropylene coating and the acid-modified
polypropylene lies above the crystallite melt point of the polypropylene.
The coextruded-coated aluminum foil is then immediately shock-like
cooled (e.g., at least 10°C) so that the crystalline proportion at least in the
surface area of the cooled polypropylene coating and the crystal grains in
this area are as small as possible."
"Since the oven heating requires that the temperature of the
surface of the polypropylene coating and the acid-modified polypropylene
of the exiting coextruded-coated aluminum coating lies above the
crystallite melt point of the polypropylene, the temperature of the surface
of the polypropylene coating and the acid-modified polypropylene of the
coextruded-coated aluminum entering the oven lies below the crystallite
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