Appeal No. 94-3255
Application 07/673,264
the appellants are advised that, when an invention involves a
biological material, and words alone cannot sufficiently
describe how to make and use the invention in a reproducible
manner; a deposit of the material may be necessary in order to
satisfy the requirements of 35 U.S.C. § 112, first paragraph.
An applicant can avoid making a deposit, by demonstrating
public accessibility of a biological material; i.e., by
establishing that it is “known and readily available.” See
MPEP § 2404.01 for a description of “known and readily
available.” It appears from the record that the appellants
have deposited the parent Bacillus MGA3; one type of stable
morphological mutant, GR 7/30-15, which is also an auxotrophic
mutant capable of excreting at least 5 g/l lysine; and one
environmental isolate, NOA2 8/16-5, which appears to be
identical to Bacillus MGA3. The appellants have not deposited
any auxotrophic mutants of Bacillus MGA3 which are capable of
excreting at least about 5 g/l aspartic acid, 5 g/l
phenylalanine, or 5 g/l tryptophan. Nor have the appellants
demonstrated that auxotrophic mutants possessing these
properties (i) can be obtained in a reproducible manner, and
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