The Written Description Requirement - An Ambiguous Yet Critical Requirement for Patent Applicants

In 1822 the U.S. Supreme Court ruled in Evans v. Eaton that an inventor who had made improvements to a patent could not win an infringement action based upon those improvements because the improvements were not adequately stated in the original patent's specification.21 At the time of the Evans decision, the Patent Act of 1793 did not require claims, but did require that the patent applicant “deliver a written description of his invention.”22 The Court stated “it is necessary for the validity of the patent, that the specification should describe in what the improvement consists.”23 The Court stated that the specification has two objects.24 The first identified the enablement requirement stating that the specification must “make known the manner of constructing the [invention] so as to enable artizans to make and use it, and thus to give the public the full benefit of the discovery after expiration of the patent.”25 The second identified the written description requirement by stating that the specification is supposed to:

"put the public in possession of what the party claims as his own invention, so as to ascertain if he claims anything that is in common use, or is already known, and to guard against prejudice or injury from the use of an invention which the party may otherwise innocently suppose not to be patented. It is, therefore, for the purpose of warning an innocent purchaser or other person using a machine, of his infringement of the patent; and at the same time of taking from the inventor the means of practicing upon the credulity or the fears of other persons, by pretending that his invention is more than what it really is, or different from its ostensible objects, that the patentee is required to distinguish his invention in his specification."26

Therefore, the Court held that for an improvement upon an existing patent to receive the protection of a patent, the improvement must have been specified in the original patent's specification.27

The current version of 35 U.S.C. section 112 is a result of the 1975 amendments to the Patent Act of 1952.28 Over the years, however, the Court of Customs and Patent Appeals (C.C.P.A.) and the Court of Appeals for the Federal Circuit 29 have not presented a cohesive or consistent body of law concerning the issue of the written description requirement under section 112.30 In fact, after reviewing the Federal Circuit's jurisprudence on the written description requirement, the judge for the Northern District of Illinois stated in Vas-Cath Inc. v. Mahurkar that “[u]nfortunately, it is not so easy to tell what the law of the Federal Circuit is” in regard to the written description requirement.31 The Federal Circuit then took the opportunity to “improve the situation” on appeal by providing an in-depth pronunciation of the law concerning the written description requirement.32 The Federal Circuit held that the written description requirement is distinct and different from the enablement requirement.33 Further, the court held that the purpose of the written description requirement is broader than merely the enablement requirement of how to “make and use” because the applicant must convey to those skilled in the art that he or she was in possession of the invention at the time of filing the patent application.34

B. The Origin of the Claim Requirement

A claim in a patent application defines the scope of the invention and functions to forbid not only exact copies of the invention, but products that go to “the heart of the invention” yet avoid the literal language of the claim by making a trivial change.35 Prior to 1790, the notion of a claim did not appear in either British or American patent practice.36 Not until the passage of the Patent Act of July 4, 1836, did claim practice become a statutory recognition.37 As early as the 1850s judges were beginning to express more frequently the idea that in seeking to ascertain what an invention was comprised of should be limited to interpreting the summary or claim of the patent.38 The notion that the claim is as important if not more important that the description did not develop until the Patent Act of 1870 which required the inclusion of claims in patent applications.39

C. The Difference Between the Written Description and Enablement Requirements

In light of the Vas-Cath opinion the written description requirement is clearly distinct from the enabling requirement.40 The first case, however, that distinguished the written description requirement from the enablement requirement was In re Ruschig.41 In that case the court stated that the issue concerning the description requirement is whether the specification clearly conveys to those skilled in the art the information that the inventors invented the specific compound.42 The original patent in In re Ruschig was filed in 1956 and involved chemical compounds for use as oral medications to control diabetes.43 The original patent application included claims for numerous specific chemical compounds.44 A little more than a year after the original application was filed, the applicants added claims to an additional chemical compound.45 The issue before the court was whether the claims to the additional compound were supported by the disclosure in the original application's specification.46 The court, affirming the Patent Office Board of Appeals, stated the following,

"[n]ot having been specifically named or mentioned in any manner, one is left to select from the myriads of possibilities encompassed by the broad disclosure, with no guide indicating or directing that this particular selection should be made rather than any of the many others which could also be made."47

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The applicants argued, however, that the new compound complied with section 112 since one skilled in the art would be enabled by the specification to make the new compound.48 The court disagreed with the argument for two reasons:

"First, it presumes some motivation for wanting to make the compound in preference to others. While we have no doubt a person so motivated would be enabled by the specification to make it, this is beside the point for the question is not whether he would be so enabled but whether the specification discloses the compound to him, specifically, as something appellants actually invented. We think it does not. Second, we doubt that the rejection is truly based on section 112, at least on the parts relied on by appellants [i.e. the enablement requirement]. If based on section 112, it is on the requirement thereof that ‘The specification shall contain a written description of the invention . . . .’"49

The court concluded that the specification did not convey clearly to those skilled in the art that the applicants had invented the additional compound.50

It is possible for a specification to enable the use and practice of an invention as broadly as it is claimed, and still not describe the invention.51 The Court of Customs and Patent Appeals described this scenario in the following way:

"[C]onsider the case where the specification discusses only compound A and contains no broadening language of any kind. This might very well enable on skilled in the art to make and use compounds B and C; yet the class consisting of A, B, and C has not been described."52

The Federal Circuit, however, has not always analyzed the written description requirement versus the enablement requirement correctly.53 In Kennecott Corporation v. Kyocera International, Inc. the Federal Circuit stated that the “purpose of the description requirement of [the first paragraph section 112] is to state what is needed to fulfill the enablement criteria. These requirements may be viewed separately, but they are intertwined.”54 The court corrected itself in the 1991 case of Vas-Cath Inc. v. Mahurkar by reaffirming previous case law that held that the written description requirement of the first paragraph of section 112 is distinct from the enablement requirement.55 The court stated, “[t]he purpose of the ‘written description’ requirement is broader than to merely explain how to ‘make and use’; the applicant must also convey with reasonable clarity to those skilled in the art that, as of the filing date sought, he or she was in possession of the invention.”56

D. The Written Description Requirement Versus the Definiteness Requirement

There is also a difference between the written description requirement in the first paragraph of section 112 and the definiteness requirement in the second paragraph of section 112.57 The definiteness requirement states that “the specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant reports as his invention.”58 The Third Circuit stated in Rengo Co. Ltd. v. Molins Mach. Co. that the written description requirement, like the enablement requirement, applies to the specification while the definiteness requirement applies to claims.59 Definiteness requires precision in the language of the claim rather than adequacy of disclosure or description.60 The court in Rengo stated that,

"[a]dequate description of the invention guards against the inventor's overreaching by insisting that he recount his invention in such detail that his future claims can be determined to be encompassed with his original creation. The definiteness requirement shapes the future conduct of persons other than the inventor, by insisting that they receive notice of the scope of the patented device."61

Thus, although a specification may not meet the written description requirement and therefore may not adequately describe the invention, the claims may still be definite within the meaning of section 112.62

II. Circumstances When Written Descriptions Have/Have Not Been Sufficient to Support A Claim:

Whether a specification complies with the written description requirement for any claim is a factual determination.63 Additionally, how close the original description must come to comply with the written description requirement under section 112 is made on a case-by-case basis.64

A. When A Written Description Has Been Sufficient to Support A Claim

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Courts have allowed claims added after the original filing of a patent application so long as the added claims were adequately described in the original application's specification. It is possible for the specification to meet the description requirement where the new claim is for broader or different subject matter than that claimed or disclosed in the specification.65 In In re Rasmussen, the court held that a claim may be broader than the specific embodiment disclosed in a specification.66 The claims at issue in that case, which were directed to the generic step of “adheringly applying” one layer to an adjacent layer, nevertheless were held to be supported by the description because “one skilled in the art who read the specification would understand that it is unimportant how the layers are adhered, so long as they are adhered.”67

The applicant's specification need not describe the claimed invention in ipsis verbis to comply with the written description requirement.68 According to the Patent and Trademark Office Board of Patent Appeals and Interferences in Ex parte Sorenson, the test for determining whether a claimed invention is adequately described in the specification is whether the originally filed disclosure reasonably conveys to a person having ordinary skill in the art that the applicant had possession of the subject matter later claimed.69 The Board also stated that the inquiry into whether the description requirement is met is a question of fact and must be determined on a case-by-case basis.70

The case of In re Smythe presented the C.C.P.A. a situation where a new claim was alleged to be broader than the subject matter disclosed in the specification.71 In that case, the court held that the description of properties and functions of the air or other gas segmentizing medium described in the patent holder's specification would suggest to a person skilled in the art that the invention includes the use of inert fluid.72 The court relied on known industry standards and ruled that the broader claim language would be permitted.73 To illustrate its point, the court developed a hypothetical scenario.74 In the scenario, the court stated that an applicant who described in his or her specification the use and function of a 1-pound lead weight as a scale counterbalance would immediately convey to any person skilled in the art the knowledge that the applicant invented a scale with a 1-pound counterbalance weight, regardless of its composition.75 The court held that it is not necessary that the application describe the claim limitations exactly, but only so clearly that persons of ordinary skill in the art to which the invention pertains would recognize from the disclosure that the applicant's invention included those limitations.76

B. When A Written Description Has Not Been Sufficient to Support A Claim

There are many circumstances where the courts have held that claims added as an amendment to a patent application do not warrant the protection of the patent because the written description was inadequate in regard to the added claims. A claim does not have to be limited to the preferred embodiment; however, the scope of the right to exclude may be limited by a narrow disclosure.77 In Gentry Gallery, Inc. v. Berkline Corp., the patent at issue described a sectional sofa with a side-by-side reclining seat separated by a fixed console.78 The court stated that the original disclosure clearly identified the console as the only possible location for the controls that recline the seats and provides for only the most minor variation in their location.79 Therefore, the description did not support several claims that identified the recliner control locations as being outside of the console, which is significantly different than that described in the written description.80 In Lockwood v. American Airlines, Inc., the Federal Circuit ruled that a disclosure of a television set with a keypad, connected to a central computer with a video disk player, did not support claims directed to “an individual terminal containing a video disk player.”81 The court held that claims directed to a distinct invention from that disclosed in the written description do not satisfy the written description requirement.82

In the case of Fiers v. Revel, the Federal Circuit ruled that an inventor was not entitled to his foreign application filing date because of inadequate written description for a claim.83 In this case, three foreign inventors, Fiers, Revel and Sugano, all claimed to be the first to have isolated the DNA sequence coding for human beta-interferon, a protein with potential use in the treatment of cancer.84 The court rejected Revel's claim that he had priority rights in the invention, reasoning that he had not listed the actual human DNA sequence in his patent application:

"An adequate written description of a DNA requires more than a statement that it is part of the invention and reference to a potential method for isolating; what is required is a description of the DNA itself. Revel's specification does not do that. Revel's application does not even demonstrate that the disclosed method actually leads to the DNA, and thus that he had possession of the invention . . . . A bare reference to DNA with a statement that it can be obtained by reverse transcription is not a description; it does not indicate that Revel was in possession of the DNA . . . . [S]uch a disclosure just represents a wish, or arguably a plan, for obtaining the DNA."85

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The written description requirement will not be met if a new claim is for broader or different subject matter than that originally claimed or expressly disclosed in the specification.86 The court in In re Wertheim ruled that a specification that described a range of 25 percent to 60 percent, and described specific examples of 36 percent and 60 percent, failed to meet the description requirement for a claim calling for “at least 35 [percent]” because it read on embodiments outside the scope of the description.87

III. Use In Practice:

A.The Use of the Written Description Requirement by Defendants in an Infringement Action

Often, defendants in an infringement action will attempt to invalidate a claim by showing that a claim added to a patent application subsequent to the filing of the patent application is not adequately described in the specification, in violation of the written description requirement of section 112.88 Specifically, a defendant may attempt to show that a claim in an infringement suit has a limitation that is not described in the specification, but is in the claim or is a feature added by amendment.89 In Gentry Gallery, Inc. v. Berkline Corp. the plaintiff sued the defendant for infringement of its sectional sofa patent.90 The defendant not only defeated the infringement claim but also won a counterclaim attacking the validity of several of the patent's claims under the section 112 written description requirement thus invalidating several of the plaintiff's claims.91

B. Plaintiffs' Defense to a Written Description Allegation

Plaintiffs will usually counter a charge of invalidity based on written description by showing that the missing description is implicit in the specification.92 Plaintiffs accomplish this primarily in three ways.93 First, plaintiffs can demonstrate that the limitation not described is an industry standard and that one skilled in the art would understand the limitation.94 Second, plaintiffs can show that the limitation is fully shown in prior publications and thus known to the trade.95 Finally, plaintiffs can show that the limitation is logically inferred by those skilled in the art from that which is disclosed, both in the specification and the drawings.96

Conclusion

The term written description in 35 U.S.C. section 112 by itself is ambiguous yet fulfills a vital function as well as several policy objectives in modern American patent practice. Written description serves two functions: first, it shows possession of the invention as of the time of the filing of the patent application; and, second, it teaches others what the invention is and how to make and use it, i.e. enablement.97 Additionally, the written description requirement prevents the introduction of new matter in a patent application beyond the scope of the originally filed specification.

In regard to the question of whether there still is a need for both the written description requirement and the claim requirement, while the written description provides support (both enablement and possession) for the claims, the claims define the invention and play a critical role in determining infringement. A patent must describe the exact scope of the invention to give the applicant all that he or she is entitled and to notify the public of what is still open to future inventors. These objectives are served by both the specification, which describes the invention in such full, clear, concise, and exact terms as to enable any person skilled in the art to make and use the invention; and, the patent claims, which define the scope of the patent grant and function to forbid not only exact copies of the invention, but products that go to the heart of the invention yet avoid the literal language of the claims by making a trivial change.98

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In determining when a court will find that a written description does or does not support a claim, it is helpful to review prior case law. It is important to remember, however, that this determination is a factual one made by the court on a case-by-case basis.99 Additionally, to avoid ambiguity when referring to the written description requirement, courts in their opinions should explicitly distinguish between the written description (possession) requirement and the enablement requirement.

Overall, the written description requirement of the Patent Act promotes the progress of the useful arts by ensuring applicants adequately describe their inventions in the specification for the benefit of the public in exchange for the right to exclude others from practicing the invention during the life of the patent.

Appendix A - 35 U.S.C. Section 112

The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.

The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.

A claim may be written in independent or, if the nature of the case admits, in dependent or multiple dependent form.

Subject to the following paragraph, a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.

A claim in multiple dependent form shall contain a reference, in the alternative only, to more than one claim previously set forth and then specify a further limitation of the subject matter claimed. A multiple dependent claim shall not serve as a basis for any other multiple dependent claim. A multiple dependent claim shall be construed to incorporate by reference all the limitations of the particular claim in relation to which it is being considered.

An element in a claim for a combination may be expressed as a means or step for performing a specified function without recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

[A]	The author is a member of the BOSTON COLLEGE INTELLECTUAL PROPERTY AND TECHNOLOGY FORUM and is a Managing Editor for the BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW.
[1]	Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1560 (Fed. Cir. 1991)
[2]	In re Smith, 481 F.2d 910, 914 (C.C.P.A. 1973).
[3]	Robert P. Merges, Peter S. Menell & Mark A. Lemley, Intellectual Property in the New Technological Age 217 (2d ed. 2000).
[4]	See 35 U.S.C. § 112 (1994); Appendix A.
[5]	See 35 U.S.C. § 112, para. 1; Appendix A.
[6]	See Bonito Boats Inc. v. Thunder Craft Boats Inc., 489 U.S. 141, 150-51 (1989).
[7]	Donald S. Chisum, Chisum on Patents § 7.01 (2000); see also Appendix A.
[8]	See Appendix A.
[9]	In re Wertheim, 541 F.2d 257 (C.C.P.A. 1976).
[10]	Chisum, supra note 7, § 7.04.
[11]	Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1560 (Fed. Cir. 1991).
[12]	See id.
[13]	Id. The court in Vas-Cath Inc. also stated that the issue of adding claims at a later time in the hope of gaining the protection of the earlier filing date has also been analyzed in terms of "new matter" under 35 U.S.C. section 132. Id.
[14]	Chisum, supra note 7, at § 7.04.
[15]	See Vas-Cath Inc., 935 F.2d at 1562-63; In re Wright, 866 F.2d 422, 424-25 (Fed. Cir. 1989); Rengo Co. v. Molins Mach. Co., 657 F.2d 535, 551 (3rd Cir. 1981).
[16]	Vas-Cath Inc., 935 F.2d at 1560. This paper will not discuss in detail the written description issue in an interference context.
[17]	See Appendix A; see also Vas-Cath Inc., 935 F.2d at 1560.
[18]	Vas-Cath Inc., 935 F.2d at 1560-61 (refering to Evans v. Eaton, 20 U.S. 356 (1822)).
[19]	Chisum, supra note 7, at § 7.02 (citing the Patent Act of April 10, 1790, ch. 7, § 2, 1 Stat. 109).
[20]	Id.
[21]	Evans v. Eaton, 20 U.S. 356, 365 (1822).
[22]	Id. (emphasis added); see also Vas-Cath Inc., 935 F.2d at 1560-61.
[23]	Evans, 20 U.S. at 366.
[24]	Id. at 434.
[25]	Id.
[26]	Id.
[27]	Id. at 435; see also O'Reilly v. Morse, 45 U.S. 62, 68 (1853) (relying on the enablement requirement to invalidate Morse's eighth claim; however it could be argued the Court implicitly also relied on the written description requirement in making its determination).
[28]	Chisum, supra note 7, § 7.02[4]; see Appendix A.
[29]	The United States Court of Appeals for the Federal Circuit was created by Congress in 1982 to hear all patent appeals from the federal District Courts and is the successor to the the Court of Customs and Patent Appeals (C.C.P.A.). See Merges et al., supra note 3, at 129-30.
[30]	See Vas-Cath Inc. v. Mahurkar, 745 F. Supp. 517, 522 (N.D. Ill. 1990).
[31]	Id.
[32]	See generally Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555 (Fed. Cir. 1991).
[33]	Id. at 1563.
[34]	Id.; see also Gentry Gallery, Inc. v. The Berkline Corp., 134 F.3d 1473 (Fed. Cir. 1998); Regents of the University of California v. Eli Lilly & Co., 119 F.3d 1559 (Fed. Cir. 1997).
[35]	Markman v. Westview Instruments, Inc., 517 U.S. 370, 373 (1996) (referring to the Doctrine of Equivalents).
[36]	Id. at 378, 116 S.Ct. at 1390.
[37]	Id. (citing Act of July 4, 1836, ch. 357, § 6, 5 Stat. 119).
[38]	Id.
[39]	Id. (citing Act of July 8, 1870, ch. 230, § 26, 16 Stat. 201).
[40]	Id. at 1116-17.
[41]	379 F.2d 990 (C.C.P.A. 1967); see also Chisum, supra note 5, at § 7.04[1].
[42]	In re Ruschig, 379 F.2d at 996.
[43]	Id. at 991.
[44]	Id. at 993-94.
[45]	Id. at 991.
[46]	Id.
[47]	Id. at 995.
[48]	In re Ruschig, 379 F. 2d at 995.
[49]	Id. at 995 (emphasis added).
[50]	Id. at 996.
[51]	In re DiLeone, 436 F.2d 1404 (C.C.P.A. 1971).
[52]	Id. at 1405 n. 1.
[53]	See Kennecott Corp. v, Kyocera Int'l, Inc., 835 F.2d 1419, 1421 (Fed. Cir. 1987).
[54]	Id.
[55]	935 F.2d 1555, 1563-64 (Fed. Cir. 1991).
[56]	Id. (emphasis added).
[57]	See Appendix A; see generally Rengo Co. Ltd. v. Molins Mach. Co., 657 F.2d 535, 550 (3d Cir. 1981).
[58]	See Appendix A.
[59]	657 F.2d at 550-51.
[60]	Id.
[61]	Id.
[62]	Id. at 551.
[63]	Ralston Purina Co. v. Far-Mar-Co., Inc., 772 F.2d 1570, 1574-75 (Fed. Cir. 1985).
[64]	Id. at 1575; see also Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1565 (Fed. Cir. 1991) (holding that under certain circumstances, drawings alone may provide sufficient written decription).
[65]	See Ralston Purina Co., 772 F.2d at 1574-77 (relying on known industry standards).
[66]	650 F.2d 1212, 1214 (C.C.P.A. 1981)
[67]	Id. at 1215.
[68]	Ex parte Sorenson, 3 U.S.P.Q.2d 1462, 1463 (P.T.O. Bd. Pat. App. & Int'f 1987).
[69]	Id.
[70]	Id.
[71]	In re Smythe, 480 F.2d 1376, 1384 (C.C.P.A. 1973).
[72]	See id. at 1384.
[73]	Id.
[74]	See id.
[75]	See id.
[76]	See id. at 1382-84.
[77]	Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1479 (Fed. Cir. 1998).
[78]	Id. at 1475.
[79]	Id. at 1479.
[80]	See id.
[81]	107 F.3d 1565, 1572 (Fed. Cir. 1997); see also Regents of the University of California v. Eli Lilly & Co., 119 F.3d 1559, 1568 (Fed. Cir. 1997) (stating that the case law does “not compel the conclusion that a description of a species always constitutes a description of a genus of which it is part”).
[82]	See Lockwood, 107 F.3d at 1572.
[83]	Fiers v. Revel, 984 F.2d 1164, 1169 (Fed. Cir. 1993)
[84]	Id. at 1166-67.
[85]	Id. at 1170-71.
[86]	See In re Wertheim, 541 F.2d 257, 263-64 (C.C.P.A. 1976)
[87]	Id. at 264-65; see also Chisum, supra note 7, § 7.04[2]; Regents of the University of California v. Eli Lilly & Co., 119 F.3d 1559, 1568 (Fed. Cir. 1997) (stating that the description requirement of the patent statute requires a description of an invention, not an indication of a result that one might achieve if one made that invention); In re Kaslow, 707 F.2d 1366 (Fed. Cir. 1983) (stating that the description requirement is not met if a claim is narrowed by an amendment that adds an element or limitation that is not supported by the specification).
[88]	Thomas E. Fisher, Dealing with Sections 102 and 112, 258 Prac. L. Inst. 453, 463 (Nov. 1988).
[89]	See id.
[90]	134 F.3d 1473, 1479 (Fed. Cir. 1998).
[91]	See id.; see also Regents of the University of California v. Eli Lilly & Co., 119 F.3d 1559, 1568 (Fed. Cir. 1997); Wang Laboratories, Inc. v. Toshiba Corp., 993 F.2d 858 (Fed. Cir. 1993); In re Kaslow, 707 F.2d 1366 (Fed. Cir. 1983).
[92]	Fisher, supra note 88, at 463.
[93]	See id.
[94]	See id.; see also In re Smythe, 480 F.2d 1376, 1382 (C.C.P.A. 1973).
[95]	Fisher, supra note 88, at 463.
[96]	Id.; see also Tronzo v. Biomet Inc., 156 F. Supp. 1154, 1154 (Fed. Cir. 1998) (stating that the written decription test can be satisfied by an inherent disclosure of the invention so long as the inventor's possession of the claimed invention is obvious); Ralston Purina Co. v. Far-Mar-Co., Inc., 772 F.2d 1570, 1574-75 (Fed. Cir. 1985); In re Smythe, 480 F.2d at 1384.
[97]	Interview with Martin J. O'Donnell, Esq., Partner, Cesari and McKenna, LLP (May, 2001).
[98]	See Markman v. Westview Instruments, Inc., 517 U.S. 370, 373-74 (1996).
[99]	Ralston Purina Co. v. Far-Mar-Co., Inc., 772 F.2d 1570, 1575 (Fed. Cir. 1985).