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University of Missouri School of Law

Intellectual Property Law

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An Empirical Study Of The Role Of The Written Description Requirement In Patent Prosecution, Dennis D. Crouch Jan 2010

An Empirical Study Of The Role Of The Written Description Requirement In Patent Prosecution, Dennis D. Crouch

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An en banc Federal Circuit is now considering whether Section 112 of the Patent Act as properly interpreted includes a written description requirement that is separate and distinct from the enablement requirement. Although the USPTO has no direct role in the infringement dispute, the government submitted an amicus curie brief arguing that a separate written description requirement is “necessary to permit the USPTO to perform its basic examination function.” However, when pressed during oral arguments the government could not point to any direct evidence supporting its contention.

This essay presents the results of a retrospective empirical study of the role ...