Appeal No. 2004-1968 Page 6
Application No. 10/000,311
[t]his invention is also directed to methods for producing a corn
plant by crossing a first parent corn plant with a second parent corn
plant, wherein the first or second corn plant is the inbred corn plant
from the line LH321. Further, both first and second parent corn
plants may be from the inbred line LH321. Therefore, any methods
using the inbred corn line LH321 are part of this invention: selfing,
backcrosses, hybrid breeding, and crosses to populations. Any
plants produced using inbred corn line LH321 as a parent are within
the scope of this invention.
Against this backdrop, we now consider the rejections of record.
DISCUSSION
Definiteness:
Claims 6 and 26-28 stand rejected under 35 U.S.C. § 112, second
paragraph. For the following reasons we reverse.
Claim 6
According to the examiner (Answer, page 3), “the recitation ‘further
defined as comprising a gene conferring male sterility’ … appears to broaden the
scope of its parent claim, or to raise some doubt as to whether the corn plant of
claim 6 must be male sterile.” In this regard, the examiner finds (id.), “[t]he
specification does not define plants expressing all the physiological and
morphological characteristics of LH321 as being male sterile, or as comprising a
gene that confers male sterility; in fact, the plant of claim 2 (from which claim 6
depends) is male fertile.”
Initially, we note that claim 6 does not require that the corn plant express
all the physiological and morphological characteristics of LH321. To the contrary,
this appears to be the subject matter of claim 5, which the examiner has
indicated to be allowable. Page 3, Final Rejection, mailed July 1, 2003. As we
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