IN RE: GLOBAL IP HOLDINGS LLC, decided July 5, 2019, Written Description

.S. Patent No. 8,690,233 is directed to vehicle load floors with sandwich-type composite panels with cellular cores (page 2). A reissue was filed to replace “thermoplastic” with “plastic” (pages 2-3). The specification only describes “thermoplastic,” yet a declaration indicated that other types of plastics are known for use in load floors and that the material is not critical (pages 4-5). The level of detail required to satisfy written description varies depending on the nature and scope of the claims and on the complexity and predictability of the relevant technology (page 6). The criticality or importance of the unclaimed limitation to the invention may be relevant (page 7). The case was remanded for factual determination using relevant factors including predictability and criticality, which factors were not considered by the Board (pages 7-8).

Hindsight: The whole issue may have been avoided by using the generic plastic or even a broader category of materials in the claim and supporting in the specification with a list of alternative plastics or materials. Known or likely alternatives may be included in the specification in an effort to cover the likely or known implementations. Directing claim language to a genus with multiple species examples, especially for non-critical materials, indicates intended breadth and support for the genus. Even with the material not being critical and being known, the patent using only thermoplastic may be different to overcome.