Federal Circuit Confirms That Written Description and Enablement Are Separate Requirements under Section 112


On March 22, the Court of Appeals for the Federal Circuit, sitting en banc, confirmed that the “written description” requirement is separate from the “enablement” requirement under 35 U.S.C. § 112. Relying on principles of statutory construction, the Court held that § 112, first paragraph, contains two separate description requirements: a “written description [i] of the invention, and [ii] of the manner and process of making and using [the invention].” Ariad Pharms., Inc. v. Eli Lilly & Co., No. 08-1248, Slip op. at 10 (Fed. Cir. 2010) (en banc).

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