Ex Parte Elsner - Page 1



                               The opinion in support of the decision being entered today was not written                                
                                        for publication and is not binding precedent of the Board.                                       

                                                                                                Paper No. 13                             

                            UNITED STATES PATENT AND TRADEMARK OFFICE                                                                    
                                                           __________                                                                    

                                   BEFORE THE BOARD OF PATENT APPEALS                                                                    
                                                   AND INTERFERENCES                                                                     
                                                             __________                                                                  
                                                   Ex parte WILHELM ELSNER                                                               
                                                             __________                                                                  
                                                       Appeal No. 2004-0167                                                              
                                                    Application No. 09/753,976                                                           
                                                             __________                                                                  
                                                    VACATUR AND REMAND                                                                   
                                                             __________                                                                  
                Before WILLIAM F. SMITH, ADAMS, and GRIMES, Administrative Patent Judges.                                                
                WILLIAM F. SMITH, Administrative Patent Judge.                                                                           

                        This appeal involves plant patent Application No. 09/753,976.  The question                                      
                raised in this appeal involves whether evidence of foreign sales of the claimed                                          
                reproducible plant variety may enable an otherwise non-enabled printed publication                                       
                disclosing the plant, thereby creating a bar under 35 U.S.C. § 102(b).  The Court of                                     
                Appeals for the Federal Circuit considered that issue in In re Elsner, 381 F.3d 1125,                                    
                72 USPQ2d 1038 (Fed. Cir. 2004), and held in the affirmative.  Id. at 1128, 72 USPQ2d                                    
                at 1041.  In so holding, the court stated that “[t]he foreign sale must not be an                                        









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