Appeal No. 94-3255
Application 07/673,264
Bacillus MGA3 (see Category 3).
According to the examiner, “the recitation of
‘biologically pure strain stable morphological mutants’
renders the claim indefinite, since it is unclear what is
encompassed thereby.” Answer, p. 6. In response, the
appellants argue that “[t]he variety in bacterial shapes are
known to those of skill in the art and Bacillus species are
typically rod shaped. Bacteria having the other identifying
characteristics of Bacillus MGA3 but differing in shape would
be readily recognized by one of skill in the art as
morphological mutants.” Brief, para. bridging pp.
11-12. The appellants point to the disclosure of the
isolation of strain Gr to support their position. Id. We
agree that strain Gr is one type of morphological mutant
encompassed by claim 55, but the claim is not limited to that
strain. Nor, contrary to the appellants’ argument, is the
claim limited to bacteria wherein the only difference between
the mutant and Bacillus MGA3 is a difference in shape. That
is, Category 3 is not directed to stable, morphological
mutants having all of the identifying characteristics of
14
Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
Last modified: November 3, 2007