Appeal No. 94-1709
Application 07/716,115
virtually zero. On information and belief, despite
repeated attempts to find such a blackspot resistant
Lemhi potato since introduction of the variety in
1981, none has yet been found.
See the Secor Declaration, paragraphs 4 and 5. On this point,
we invite attention to appellants' claims which are not
restricted to the Lemhi Russet ("Lemhi") variety of potato.
Where, as here, claims 9 and 18 through 20 contain no
limitation serving to distinguish from naturally occurring
cultivars "highly resistant to blackspot" (specification, page
3, second paragraph), we find it unnecessary to reach the
question whether blackspot-resistant Lemhi plants and tubers
occur in nature. The Secor Declaration, and appellants'
argument based on that declaration, would predicate
patentability on a limitation not found in the claims.
35 U.S.C. § 103
Considering now the prior art rejection, we find that a
person having ordinary skill in the art would not have a
sufficient basis for the necessary predictability of success
to sustain a rejection under 35 U.S.C. § 103 based on the
combined disclosures of Shepard and Cherry. See In re
Clinton, 527 F.2d 1226, 1228, 188 USPQ 365, 367 (CCPA
1976).
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