Appeal No. 93-2460
Application No. 07/590,647
particular properties, size and potential toxicity of Bt2 toxin
and, absent evidence to the contrary, they are not relevant to
the expression of the claimed EPSPS sequences.
Accordingly, Rejection V is reversed.
Rejection VI
The examiner argues that the claims directed to transformed
plant cells, plants, and their seed are not patentable over the
glyphosate resistant plants taught by Comai or Fillatti. The
examiner acknowledges on p. 7 of the Answer that
the genome of Applicants’ claimed plants, seeds, and plant
cells may differ from the genome of the glyphosate resistant
plants of Comai or Fillatti, et al, the prior art plants and
plant cells would be indistinguishable from the claimed
plants with respect to physical characteristics. Applicants
do not provide any evidence that the glyphosate tolerant
plants transformed with a gene containing the specific
mutations cited performs [sic, perform] any differently than
glyphosate tolerant plants known in the art such as those
taught by Comai and Fillatti et al.
In the alternative the examiner urges on p. 8 of the Answer
that:
If, in fact, the claimed and reference [sic, referenced]
plants are not identical, then the existence of glyphosate
resistant plants would reasonably have suggested the
existence of the same or similar products to one of ordinary
skill in the art, making the claimed invention as a whole
prima facie obvious to those of ordinary skill in the art at
the time the claimed invention was made.
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