Appeal No. 2004-0329 Page 11
Application No. 09/251,953
genetic identity of crops, whether for seed production or for food production. We
also note in passing that most of the claims, such as claim 24, do not exclude
the possibility of using the processed seeds as seed stock.
The fact that genetically modified seeds did not even exist as of the 1979
publication date of Poehlman is irrelevant. Poehlman provides a method of
preserving the genetic identity of seeds. The ADM article provides the current
problem to be solved, the separation and the preservation of the identity of non-
genetically modified crops. The ordinary artisan would have looked to methods
of preserving genetic identity that were well known in the art, such as those
taught by Poehlman, and applied them to the problem recognized by the ADM
article. Finally, the fact that the scale of operations involved in producing a crop
may be larger than that involved in producing seed stock is also moot as the
claims do not specify any scale, and thus read on the production of smaller crops
as well as larger crops.
Appellants argue further that the visual screening methods taught by
Poehlman cannot distinguish between genetically modified and non-genetically
modified plants, “let alone a specific GMO contamination percentage, e.g., 5% or
less, 1% or less, 0.1% or less, or 0.01% or less.” Appeal Brief, page 8. With
respect to claims 25-30, 35-38, 46-51 and 56-59, appellants argue that the
combination does not suggest a level of GMO contamination of 5% or less; 1%
or less; 0.1% or less; or 0.01% or less; and thus the combination does not
provide a reasonable expectation of success of achieving those contamination
levels. See Appeal Brief, pages 12-14. In addition, appellants argue that the
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