Lack of Written Description Makes Claims Interference Unpatentable to Junior Party

Adang v. Umbeck, [2007-1120](October 25, 2007)[BRYSON, FRIEDMAN, KEELEY] NON-PRECEDENTIAL The Federal Circuit affirmed the BPAI's determination that Adang's claims in interference were invalid for failure to comply with the written description requirement.
BRIEF: The claims in interference were directed to cotton plants with "selected foreign DNA". Umbeck complained that Adang's specification only supported plants transformed with insecticidal resistance genes, rather than "any" selected DNA. The BPAI agreed, finding the claims in interference unpatentable to Adang. On appeal Adang complained that there was no expert testimony about the meaning of "selected foreign DNA" to a person of ordinary skill in the art, but the Federal Circuit said that a patent can be held invalid for failure to meet the written description requirement solely on the language of the specification. The Federal Circuit also agreed with the BPAI that Adang failed to properly incorporate by reference the disclosure of a patent application mentioned, but not specifically incorporated by reference.