Appeal No. 94-1709
Application 07/716,115
According to the examiner,
Shepard teaches that protoplasts can be subjected to
suspected disease causing agents during development
and subsequently resistant strains can be selected
from the wild type by their lack of disease
symptoms, i.e.[,] their lack of susceptibility to
the causative agent of the disease. [Examiner's
Answer, paragraph bridging pages 3 and 4.]
Conspicuous by its absence from the Answer, however, is any
reference to the particular portion or portions of Shepard
which contain the above-quoted teaching. See 37 CFR §
1.106(b), stating that "the particular part [of the reference]
relied on must be designated as nearly as practicable."
Furthermore, in our judgment, the examiner overstates the
import of Shepard. This reference discusses "The Problem with
Potatoes," and states that "[g]enetically, the potato is a
complex and diverse group of tuber bearing species and
subspecies belonging to the genus Solanum" (Shepard, page
188). Shepard further discloses that "[h]istorically, the
potato has contrasted sharply with the cereals and many other
important crop plants in its having been quite refractory to
specific improvement through conventional breeding
techniques;" that "the potato is commonly omitted from
comprehensive treatises on resistance breeding;" and that
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