Appeal No. 1996-1240
Application 08/044,961
been added to the organic substance, whereas in Pinckard’s
method, the culturing takes place during the formation of the
compost before it is applied to the sewage sludge-containing
soil. The examiner
does not explain, and it is not apparent, where Pinckard
discloses or suggests culturing Actinomycetes in the presence
of an organic substance.
Pinckard does not state whether the Actinomycetes are
medium or high temperature Actinomycetes. The examiner argues
that Pinckard’s Actinomycetes inherently are medium and high
temperature Actinomycetes (answer, page 5). The examiner,
however, provides no evidence or technical reasoning in
support of this argument. When an examiner relies upon a
theory of inherency, “the examiner must provide a basis in
fact and/or technical reasoning to reasonably support the
determination that the allegedly inherent characteristic
necessarily flows from the teachings of the applied prior
art.” Ex parte Levy, 17 USPQ2d 1461, 1464 (Bd. Pat. App. &
4
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