Appeal 2007-0278
Application 10/042,047
invention.” Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563-64, 19
USPQ2d 1111, 1117 (Fed. Cir. 1991) (emphasis in original). The written
description, although it need not include information that is already known
and available to the experienced public, must be in sufficient detail to satisfy
the statutory requirements, employing “[w]ords, structures, figures,
diagrams, formulas, etc., that fully set forth the claimed invention.” Space
Systems/Loral, Inc. v. Lockheed Martin Corp., 405 F.3d 985, 987, 74
USPQ2d 1534, 1535 (Fed. Cir. 2005) (quoting Lockwood v. American
Airlines, Inc., 107 F.3d 1565, 1572, 41 USPQ2d 1961, 1966 (Fed. Cir.
1997)). “Precisely how close the original description must come to comply
with the description requirement of section 112 must be determined on a
case-by-case basis.” Eiselstein v. Frank, 52 F.3d 1035, 1039, 34 USPQ2d
1467, 1470 (Fed. Cir. 1995) (quoting Vas-Cath, 935 F.2d at 1561, 19
USPQ2d at 1116). With respect to negative limitations, our reviewing court
has determined that an “express intent to confer on the claim language the
novel meaning imparted by [the] negative limitation” is required, such as an
“express disclaimer or independent lexicography in the written description.”
Omega Engineering, Inc, v. Raytek Corp., 334 F.3d 1314, 1323, 67 USPQ2d
1321, 1327 (Fed. Cir. 2003) (internal citations omitted).
In the instant case, we find Appellants do not disclose an express
disclaimer or independent lexicography in the written description that
provides support for the recited negative limitation of a “non-text image.” In
particular, we note that the disputed negative limitation for claims 6, 12, and
18 (i.e., “non-text image”) was added by an amendment to the claims filed
on Oct. 19, 2004. While literal support is not required, we nevertheless find
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