Appeal No. 93-4108
Application 07/552,880
dosing an emerged seedling with the phytotoxic chemical. It is not apparent that an
emerged seedling would be considered a fertilized seed. While an emerged seedling
could be considered the product of a fertilized seed, it would appear that fertilized seeds
and emerged seedlings are two distinct states in a plant’s life. Thus, claims such as claim
19 are ambiguous in requiring that a fertilized seed be dosed with a phytotoxic chemical.
Time Period for Response
This opinion contains a new ground of rejection pursuant to 37 CFR § 1.196(b)
(amended effective Dec. 1, 1997, by final rule notice, 62 Fed. Reg. 53,131, 53,197 (Oct.
10, 1997), 1203 Off. Gaz. Pat. & Trademark Office 63, 122 (Oct. 21, 1997)). 37 CFR §
1.196(b) provides that, “A new ground of rejection shall not be considered final for
purposes of judicial review.”
37 CFR § 1.196(b) also provides that appellants, WITHIN TWO MONTHS FROM
THE DATE OF THE DECISION, must exercise one of the following two options with
respect to the new ground of rejection to avoid termination of proceedings (§ 1.197(c)) as
to the rejected claims:
(1) Submit an appropriate amendment of the claims so rejected or a
showing of facts relating to the claims so rejected, or both, and have the
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