Appeal No. 1995-2920
Application 07/999,172
Craig discloses a Pelargonium x hortorum hybrid bedding geranium with petals
containing pelargonidin and paeonidin.
Duffett discloses a fertile red-petaled P. peltatum cultivar with reduced sensitivity to
day length.
Appellants argue essentially that none of the references teaches “a diploid seed
propagatable P. peltatum plant whose petal[s] express at least one of the anthocyanidins
pelargonidin or paeonidin or a diploid seed propagatable plant containing a factor
resulting in male sterility” and that “the secondary references add nothing to the Horn et al
reference” as they “merely disclose plants of the genus Pelargonium which express some
of the desired characteristics that could be utilized in Appellants’ invention.” See the Brief,
pages 12 through 14.
In responding to these arguments, the examiner does not dispute that the
references are silent with respect to whether the cultivars are diploid seed propagatable,
but counters that it is appellants’ burden “to establish that the plant, not the plant patent . . .
does not anticipate the claimed invention.” See the Answer, page 11. The examiner adds
that “relying on the written description . . . and not the plant per se [places] an unfair burden
on the Office to establish that a plant with both male and female reproductive organs is or
is not fertile” and that fertility, or the lack of it, “is an inherent aspect of the plants that can be
easily determined” but that “[t]here is no evidence on the record that Appellants have
7
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: November 3, 2007