Appeal No. 93-4108
Application 07/552,880
Rejection I is reversed.
Rejection II
The examiner has required appellants to limit the claims to the dicots as
exemplified by kanamycin resistance in Nicotiana plumbaginifolia. In support of this
requirement, the examiner relies upon Vasil for its disclosure in the right hand column of
page 400 that grasses possess high natural resistance to kanamycin.
To the extent that Vasil provides evidence that at the time of the present invention
persons skilled in this art understood that grasses possessed high natural resistance to
kanamycin, this fact would only help in establishing the enablement of the claims on appeal
rather than their non-enablement. In essence, Vasil teaches that kanamycin would not be
the first selection agent of choice in transforming grasses. Armed with this knowledge,
persons skilled in this art would know to use other markers for selection
. The examiner has not established on this record that markers effective for grasses were
unavailable. Indeed, the examiner’s reliance upon the two Beversdorf patents belies such
a finding.
Rejection II is reversed.
Rejection III
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