Appeal 2007-0512
Application 10/310,744
Written Description
Whether the written description requirement has been met is a
question of fact. Purdue Pharma L.P. v. Faulding Inc., 230 F.3d 1320, 1323,
56 USPQ 2d 1481, 1483 (Fed. Cir. 2000) ("[the inquiry into whether the
written description requirement has been met] is a factual one and must be
assessed on a case-by-case basis." (citation omitted)). Appellants do not
dispute that their specification, as filed, did not contain the term "channel,"
which now occurs in claims 27, 29, 30, 33, 34, 36, 42, and 44. The record
shows that Appellants introduced these claims in order to provoke an
interference with Henegar. Appellants also do not dispute the Examiner's
finding that Henegar "clearly disclosed separate channels as depicted in
figure 2 therein where vanes 104 separated the individual channels."
(Answer at 4.)
Appellants argue that "channels are recognized by one skilled in the
art due to the different flow paths and dynamics of the fluid not due to any
demarcated sidewalls." (Appeal Br. at 10.) According to Appellants, the
original disclosure, e.g., of the nozzle in Figure 6, showing wide and narrow
regions, would have been recognized as producing multiple channels.
(Appeal Br. at 10–11.) Appellants do not cite any evidence, whether
testimony from one knowledgeable in the art, review articles or treatises, or
instances in the prior art, in support of their argument as to how the term
"channel" would have been understood by those skilled in this art.
On the present record in this appeal, Henegar stands as the only
evidence of how this art has used and understands the term "channel."
Henegar discusses channels in some detail at column 3, l. 40, through
-17-
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