Appeal No. 95-3387
Application No. 08/005,942
exert herbicidal action" and characterizing
this as a use in a "minor capacity" (emphasis
added) to "further support the rejection."
Appellant's complaint seems to be justified,
and if we did not find the rejections based
solely on Molotsky and the French patent to
be sound, we might well feel constrained to
reverse the decision of the board. 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.
We do not consider the Schwartz reference to have been cited
in the rejection before us, particularly since the examiner
failed to indicate inclusion of the reference in the rejection
and specifically indicated on page 3 of the Examiner's Answer
that no “new prior art has been applied in this examiner's
answer.” Thus, we consider the issue of whether any of
Schmatz, '310 Pat., '067 Pat. or Michel enable a method of
making a compound which lacks a methyl at the fourth carbon of
the hydroxyproline residue of the hexapeptidyl compounds
disclosed by the references. Each of these references
disclose obtaining the core cyclic hexapeptidyl compounds from
microbial fermentates. In these references there is no
discussion of culturing the exemplified microorganisms or
other strains so as to obtain mixtures of cyclic hexapeptidyl
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