Appeal No. 94-2232
Application 07/888,367
also stand rejected under 35 U.S.C. § 102(f) over and 35
U.S.C. § 103 in view of subject matter appellants claim which
is prior art under 35 U.S.C. § 102(f) as evidenced by the co-
authorship of later-published Broekaert et al. (Lee I),
“Wound-Induced Accumulation of mRNA Containing a Hevein
Sequence in Laticifers of Rubber
Tree (Hevea brasiliensis),” Proc. Natl. Acad. Sci. USA, Vol.
87, pp. 7633-7637 (October 1990), and Lee et al. (Lee II),
“Co- and Post-Translational Processing of the Hevein
Preproprotein of Latex of the Rubber Tree (Hevea
brasiliensis), J. Biol. Chem., Vol. 266, No. 24, pp. 15944-
15948 (August 25, 1991). Claims 7 and 8 read:
7. A method for detecting the presence of hevein
peptide in a plant material which comprises:
(a) providing a selected part of the plant material
for detection;
(b) isolating RNA from the plant material; and
While appellants have not objected to the examiner’s citation of “other”
references in support of the rejection under section 103, we are mindful of the
following statement in In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3
(CCPA 1970):
Where 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.
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