Appeal No. 93-4205
Application 07/618,437
was available to those of ordinary skill in the art at the
time the application was filed. However, it is well settled
that “[w]here a reference is relied on to support a rejection,
whether or not in a ‘minor capacity,’ there would appear to be
no excuse for not positively including the reference in the
statement of the rejection.” In re Hoch, 428 F.2d 1341, 1342,
n. 3, 166 USPQ 406, 407, n. 3 (CCPA 1970). Accordingly, since
these references were not cited as prior art in the rejection,
we have not considered, or addressed, the arguments presented
by the examiner.
As to claim 2, we do not find that it is limited to a
biologically pure culture of a specifically-deposited
microorgansim. Rather, the open language of this claim reads
on the microorganism as it occurs in its natural state. That
is, claim 2 reads on any strain of Pseudomonas syringae pv.
lachrymans on an apple leaf and water. Thus, unlike the
situation with respect to claim 1, there is no requirement
that the microorganism be isolated.
Although the issue is not before us, upon return of this
application to the corps, the examiner should consider whether
6
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007