Appeal 2006-1679
Application 09/853,568
general printed indicia 21 and handwritten indicia 22 provided on the second
side to convey information about the prescription. The first side of the label
has an adhesive to adhere it to the medication bottle.
The Walgreens reference appears to be an internet webpage offering
for sale an over-the-counter acid-free digestive aid. The bottle depicted
therein has a label adhered to the surface which appears to have a graphical
depiction thereon. The depiction appears to be the neck, thorax, and upper
abdomen of a human with the esophagus and stomach depicted thereon in a
stylistic representation. We note that the medication in Acid-Free is
designated as being for everyday stomach discomfort. Therefore, we find
the label in Walgreens has a non-textural descriptive graphical depiction of
the symptoms, the body parts, the ailment, or the desired result for which the
medicine contained in the bottle is used.
PRINCIPLES OF LAW
Whether a specification complies with the written description
requirement of 35 U.S.C. § 112, first paragraph, is a question of fact.
Regents of Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559, 1566, 43
USPQ2d 1398, 1404 (Fed. Cir. 1997), cert. denied, 523 U.S. 1089
(1998)(citing Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563, 19 USPQ2d
1111, 1116 (Fed. Cir. 1991)). To fulfill the written description requirement,
a patent specification must describe an invention and do so in sufficient
detail that one skilled in the art can clearly conclude that “the inventor
invented the claimed invention.” Id. (citing Lockwood v. American Airlines,
Inc., 107 F.3d 1565, 1572, 41 USPQ2d 1961, 1966 (Fed. Cir. 1997) and In
re Gosteli, 872 F.2d 1008, 1012, 10 USPQ2d 1614, 1618 (Fed. Cir. 1989)
(“[T]he description must clearly allow persons of ordinary skill in the art to
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