Appeal No. 1995-2920
Application 07/999,172
example: expression of the pigments pelargonidin and/or paeonidin (resulting in scarlet,
red, salmon or rose colored petals); male sterility (the native plant is a hermaphrodite); day
neutrality; white center spots; or various combinations of these. All of the claims, however,
require the plants to be “diploid seed propagatable.” Read in light of the specification, the
most plausible interpretation of this term is that the plants can be propagated indefinitely,
by seed, from generation to generation.
See the Specification, page 2, second paragraph; page 8; and Breeding Schemes
1 through 5.
There are four rejections under 35 U.S.C. § 102 (b) and three under 35 U.S.C.
§ 103: according to the examiner, claim 19 is anticipated by Jacobsen ‘605 or Jacobsen
2
‘602; claim 30 is anticipated by Gugino; and claims 30 and 31 are anticipated by Horn.
Claims 32 through 37 and 39 through 45 would have been obvious over Horn and Craig;
claim 38 would have been obvious over Horn and Duffett; and claims 19 through 29 would
have been obvious over Duffett and Craig.
Our determination of the patentability of the claims on appeal is hampered by the
examiner’s failure to specifically address all of the claim limitations in the rejections
(notably, the limitation that the plants be diploid seed propagatable is addressed only in
2 The examiner rejected claims 30 and 31 in the alternative as obvious over Horn,
but provided no analysis under 35 U.S.C. § 103.
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