Appeal No. 2006-1669 Page 3
Application No. 10/476,257
OPINION
In reaching our decision in this appeal, we have given careful consideration to the
appellant's specification and claims, to the applied prior art, and to the respective positions
articulated by the appellant and the examiner. As a consequence of our review, we make the
following determinations.
We turn our attention first to the rejection of claims 24 and 25 under the first paragraph
of 35 U.S.C. § 112. The test for determining compliance with the written description
requirement is whether the disclosure of the application as originally filed reasonably conveys to
the artisan that the inventor had possession at that time of the later claimed subject matter, rather
than the presence or absence of literal support in the specification for the claim language. See
Vas Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563-64, 19 USPQ2d 1111, 1116-17 (Fed. Cir.
1991) and In re Kaslow, 707 F.2d 1366, 1375, 217 USPQ 1089, 1096 (Fed. Cir. 1983).
In this case, it is true that the appellant’s specification does not expressly state that the
winglet 12 is “fixed.” Further, while a person of ordinary skill in the art might readily envisage a
winglet as a structure fixed to the wing, as discussed in more detail infra, we find no evidence in
this record indicating that a winglet is necessarily fixed or that one of ordinary skill in the
aircraft art would consider a fixed relationship to the wing to be a required element of a winglet.
After reviewing the original specification in its entirety, however, we conclude that one of
ordinary skill in the art would infer from the description therein that the winglet 12 discussed
therein is fixed because, if the winglet were moveable, the control surfaces which are the subject
of the appellant’s invention would not appear to be necessary, as the orientation of the winglet
could presumably be altered to reduce the lift during maneuvers.
In light of the above, we will not sustain the rejection under the first paragraph of 35
U.S.C. § 112, first paragraph.
We turn next to the rejection of claims 1-7, 11-15, 20, 21, 23, 25 and 26 as being
anticipated by Allen. The appellant’s brief does not separately argue any of the claims included
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