How is the adequacy of written description determined in patent applications?
The adequacy of written description in patent applications is determined on a case-by-case basis and is a question of fact. The MPEP 2163.04 states:
“The inquiry into whether the description requirement is met must be determined on a case-by-case basis and is a question of fact. In re Wertheim, 541 F.2d 257, 262, 191 USPQ 90, 96 (CCPA 1976).”
Initially, the description as filed is presumed to be adequate, unless the examiner presents sufficient evidence or reasoning to rebut this presumption. The examiner must have a reasonable basis to challenge the adequacy of the written description.
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Topics:
MPEP 2100 - Patentability,
MPEP 2163.04 - Burden On The Examiner With Regard To The Written Description Requirement,
Patent Law,
Patent Procedure