Appeal No. 93-4108
Application 07/552,880
(b) allowing natural fertilization of the plants to occur;
(c) harvesting fertilized seed from said plots of plants used as the female parent
plant only;
(d) planting a small quantity as a sample of the seeds [sic]
(e) dosing the seedlings after emergence with a phytotoxic chemical, wherein the
parent plants used as male parent plants are resistant to said phytotoxic chemical,
wherein the parent plants used as male parent plants are resistant to said phytotoxic
chemical, said resistance being attributable solely to a homozygous dominant nuclear
marker gene being absent from the parent plants used as female parent plants; and
(f) determining the percentage of seedlings resistant to the phytotoxic chemical.
The references relied upon by the examiner are:
Beversdorf et al. (Beversdorf ‘763) 4,517,763 May 21, 1985
Beversdorf et al. (Beversdorf ‘084) 4,658,084 Apr. 14, 1987
Vasil, “Progress in the Regeneration and Genetic Manipulation of Cereal Crops,”
Bio/Technology, vol. 6, pp. 397-402 (1988)
The claims stand rejected as follows:
I. Claims 19 through 42 under 35 U.S.C. § 112, first and second paragraphs;
II. Claims 19 through 45 under 35 U.S.C. § 112, first paragraph; and
III. Claims 19 through 45 under 35 U.S.C. § 103 as unpatentable Beversdorf
‘084 in view of Beversdorf ‘763.
We reverse and make a new ground of rejection under 37 CFR § 1.196(b).
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