Appeal No. 94-1709
Application 07/716,115
specification in the section entitled BACKGROUND OF THE
INVENTION:
Even when all the predisposing factors are
considered, potato cultivars vary markedly in their
response to impact damage. Some cultivars may be
highly resistant to blackspot while others may be
highly susceptible. Tubers from a single plant may
differ in their blackening responses.
Susceptibility may also vary from the stem end to
bud end of an individual tuber. [Emphasis added.]
We find no limitation in claims 9 and 18 through 20 serving to
distinguish appellants' potato plants and tubers from products
of nature (cultivars and tubers) which are "highly resistant
to blackspot." Accordingly, we affirm the rejection of claims
9 and 18 through 20 under 35 U.S.C. § 101 as drawn to non-
statutory subject matter.
In so holding, we have not overlooked the declaration of
Gary A. Secor executed October 2, 1992. According to
Dr. Secor,
[i]t is widely and universally known by potato
researchers, breeders, etc., that the Lemhi Russet
variety of potato is highly susceptible to blackspot
and
[i]t is also widely and universally known by people
in this industry that if one were to sample
naturally occurring Lemhi potatoes in an attempt to
find one resistant to blackspot, the mathematical
probability of finding such a potato would be
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