Appeal No. 94-3255
Application 07/673,264
isolate of Bacillus MGA3 having all of the identifying
characteristics of Bacillus MGA3 or biologically pure strain
stable morphological mutants of said Bacillus MGA3 or its
corresponding environmental isolate” render the claimed
subject matter so vague and indefinite that persons skilled in
the art could not have reasonably understood or determined
which auxotrophic bacteria are and which are not encompassed
by appellants’ Claim 55. Appellants retort that the language
read as a whole in light of the teaching in the specification
reasonably would have apprised persons skilled in the art of
the metes and bounds of the claimed auxotrophic bacteria.
However, the examiner’s and appellants’ arguments so invade
the province of the written description, enablement, and best
mode requirements of the first paragraph of section 112 that
their vision of the subject matter claimed has been obscured.
As a result, neither the examiner nor appellants have
adequately considered the full scope of the claimed subject
matter in light of the function limitations in the claim and
the description of appellants’ invention in the specification.
I hold that persons having ordinary skill in the art
would not have been confused by the language which appellants
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