Appeal No. 1996-0657
Application 07/919,784
(John Wiley & Sons, Chichester, 1987)
C.J. Ridout et al. (Ridout), “Fractionation of Extracellular Enzymes from a
Mycoparasitic Strain of Trichoderma harzianum, Enzyme Microb. Technol.,
Vol. 10, pp. 180-187 (March 1988)
M. Chérif et al. (Chérif), ”Cytochemical Aspects of Chitin Breakdown During the
Parasitic Action of a Trichoderma sp. on Fusarium oxysporum f. sp. radicis-
lycopersici,” Phytopathology, Vol. 80, No. 12, pp. 1406-1414 (1990)
C.J. Ulhoa et al. (Ulhoa), “Purification and Some Properties of the Extracellular
Chitinase Produced by Trichoderma harzianum,” Enzyme Microb. Technol., Vol.
14, pp. 236-240 (March 1992)
These references are not included in the statement of rejection under 35 U.S.C. §
103. According to the examiner, “these references were cited only to provide
support for the examiner’s contention of what was known and accepted in the art
and not within a new grounds of rejection or new point of argument” (Examiner’s
Answer, Paper No. 30, Section (8)). The examiner argues that Singleton discloses
the “art-accepted” structure and functions of the fungal cell wall (Examiner’s Answer,
page 10). The examiner mentions Chérif, Ridout, and Uhola in arguing that
appellants’ rebuttal evidence in the specification and in the Harman declaration filed
January 26, 1994, is not commensurate in scope with the appealed claims
(Examiner’s Answer, page 14, line 22).
Another reference “pops up” in the Examiner’s Answer, Paper No. 30, page
7, line 10. This is Suslow et al. (Suslow), U.S. Patent No. 4,940,840 issued July 10,
1990. According to the examiner, Suslow discloses that “several bacterial and
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