Appeal No. 93-4108
Application 07/552,880
Conclusions of obviousness must be based upon facts, not generalities. In re
Freed, 425 F.2d 785, 788, 165 USPQ 570, 571 (CCPA 1970); In re Warner, 379 F.2d
1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968).
Absent a clear, fact-based statement from the examiner as to why the subject matter of
each claim, considered as a whole, would have been obvious to one of ordinary skill in the
art, we do not find that the examiner has properly discharged his initial burden of
establishing a prima facie case of obviousness.
Rejection III is reversed.
New Ground of Rejection Under 37 CFR § 1.196(b)
Claims 19 through 42, 44, and 45 are rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite.
Claims such as claim 19 are indefinite in stating in step (d) “dosing fertilised seed .
. . with the phytotoxic chemical” (emphasis added) since the claims do not previously recite
a phytotoxic chemical. Thus, the antecedent support for “the phytotoxic chemical” is not
apparent. Compare claim 19 with claim 27 in which claim 27 (a) provides proper
antecedent support for later named phytotoxic chemicals.
Claims 19 through 42 are also indefinite in stating that fertilized seed is to be dosed
with a phytotoxic chemical. As seen from claim 24, appellants intend this step to include
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007