Appeal No. 94-3255
Application 07/673,264
claimed amount of amino acid production is possible in the
claimed nutrient media, or any other media. We disagree. In
addition, we find that the issues raised in (i) and (iv),
above, involve enablement issues under
35 U.S.C. § 112, first paragraph, not indefiniteness.
As to our colleague's conclusion that the claim is
indefinite for the reason set forth in subsection (i), we
point out that claim 55 is “open” in that it is directed to a
nutrient medium “comprising” the listed components. Thus, the
claim does not exclude the presence of additional factors
needed to sustain bacterial growth such as a phosphate, a
sulfate, etc. While the claim does not recite biotin as an
ingredient, the open claim language certainly encompasses its
inclusion. Therefore, in our view, the issue is not one of
indefiniteness since the claim does not mandate the presence
of biotin but, rather, does the specification provide a
disclosure which would have enabled one skilled in the art to
“make and use” an auxotrophic mutant capable of excreting the
claimed amino acids in a nutrient media which does not contain
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