Appeal No. 2004-0329 Page 9
Application No. 09/251,953
farmers and grain merchants would have been successful in segregating
genetically modified and non-genetically modified crops.” Id. Moreover,
according to appellants, the discussion in Poehlman relates to seed certification
laws and apply to seed ultimately intended for sowing, and as such do not apply
to harvested crop. See id. (citing the Declaration of Robert H. Peterson,
submitted June 12, 2002, Paper No. 24).
Appellants argue that Poehlman is a textbook about plant breeding, and
the seed stocks described by that reference are the “merely the starting point” for
the methods of the claimed invention. See Appeal Brief, page 7. Poehlman,
according to appellants, does not discuss the problems in producing a non-
genetically modified crop and preventing its contamination by crop that has been
genetically modified. See id. at 7. In fact, appellants assert, genetically modified
seeds did not even exist as of the 1979 publication date of Poehlman. See id. at
8.
Appellants contend, as discussed in the Peterson declaration, the seed
certification methods of Poehlman are not applicable to the instantly claimed
methods of preventing contamination by genetically modified seed. See id. at
10. For example, the scale of operations involved in producing a crop is “vastly
larger” that that involved in producing seed stock. Appellants thus submit that
Poehlman is non-analogous art, see id., and that the examiner has used
hindsight reconstruction “in an attempt to make out a prima facie case of
obviousness,” id. at 11.
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