Appeal No. 1996-1042
Application No. 07/810,138
we find it unnecessary to discuss the Grandi Declaration,
filed under the provisions of 37 CFR § 1.132 and executed
February 15, 1994, relied on by appellants as rebutting any
such prima facie case.
The rejection of claims 9 through 13 under 35 U.S.C.
§ 112, first paragraph, is reversed.
Respecting the rejections of claims 9 through 15 under
35 U.S.C. § 103, appellants argue that Young, Dean '235,
Dean '236, and Dean '773 disclose asporogenous strains of
Bacillus subtilis having a reversion frequency "as low as 10 "-7
but no lower. See the Appeal Brief, pages 7 and 12. The
examiner acknowledges that this is the case, i.e., that the
"primary" references teach asporogenous strains of Bacillus
subtilis having reversion frequencies "as low as 10 " but no-7
lower. Nevertheless, the examiner states that "it remains
unclear that the strain claimed by appellants has a lower
reversion rate than those disclosed in any of the cited
references" (Examiner's Answer, page 11, last paragraph).
In resolving questions of obviousness, one must consider
the claimed subject matter as a whole. 35 U.S.C. § 103.
Here, each independent claim expressly recites the
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