What is the role of the examiner in assessing the written description requirement?
This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.
The examiner plays a crucial role in assessing whether a patent application meets the written description requirement. According to MPEP 2163.02:
“The examiner has the initial burden of presenting evidence or reasoning to explain why persons skilled in the art would not recognize in the original disclosure a description of the invention defined by the claims.”
The examiner’s responsibilities include:
- Thoroughly reviewing the entire application
- Analyzing whether the specification provides sufficient support for the claimed invention
- Providing clear explanations and evidence if a written description rejection is made
- Considering the applicant’s arguments and evidence in response to rejections
The examiner must make a decision based on the preponderance of evidence, taking into account the nature of the invention and the level of skill in the art.