Appeal No. 2000-1568
Application 08/695,249
interpreted by one possessing the ordinary level of skill in the pertinent art.” In re Moore,
439 F.2d at 1235, 169 USPQ at 238. Thus, the issue becomes would one skilled in the art
have understood what is encompassed by the phrase “pathogenic components of said
[biocontrol] agents.”
To that end, we find that the specification provides guidance through the example of
one biocontrol agent, B.t. (Bacillus thuringiensis), wherein it discloses that the pathogenic
components include vegetative cells, spores, proteinaceous crystals. Specification, p. 6,
lines 18-22. More importantly, however, we agree with the appellants that should a
question arise as to whether a particular component of a biocontrol agent is pathogenic,
one skilled in the art would have understood that simple testing of the component in
question against the appropriate pest would resolve the issue. Brief, p. 6. Thus, we find
that claim 1 sets forth with a reasonable degree of precision and particularity the “metes
and bounds” of the appellants’ invention with the use of phrase “and pathogenic
components of said [biocontrol] agents.” In re Moore, 439 F.2d at 1235, 169 USPQ at
238.
Second, the examiner argues that claim 1 is vague and indefinite in the recitation of
“about.” Answer, p. 4. According to the examiner, it is not clear “how much less than or
more than the 10 or the 65%” of the membrane stabilizing agent is intended to be included
or excluded. Id. We find that this argument lacks merit.
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