Appeal No. 1996-0657
Application 07/919,784
Answer, Paper No. 30, page 5, third full paragraph). However, that considerably
overstates the relevant disclosure in Gooday, stating that
As most fungal and invertebrate pests and pathogens have chitin as
an essential structural component (Gooday 1990d), chitinase activity
could have an important place in the repertoire of mechanisms for
biological control Thus the strongly chitinolytic fungus Trichoderma
harzianum has good potential for the control of a range of soil-borne
plant pathogens (Lynch 1987; Sivan & Chet 1989). [Gooday, page
185, under the heading “Uses of chitinolytic organisms in biocontrol”].
The Gooday reference does not contain the teaching attributed to it by the
examiner. Gooday discloses that “chitinase activity could have an important place
in the repertoire of mechanisms for biological control;” and that “the strongly
chitinolytic fungus Trichoderma harzianum has good potential for the control of a
range of soil-borne plant pathogens (emphasis added).” The examiner, however,
characterizes Gooday as teaching what it does not, namely, ”that the degradation of
chitin in the cell walls of fungi is an important method of the biocontrol of fungi.”
Further, this record does not reflect that the examiner considered the source
material referenced in the above-quoted passage in Gooday namely, Lynch 19871
or Sivan & Chet 1989. That source material is not part of the prior art relied on in rejecting2
the claims on appeal, and is not included in the statement of rejection under 35 U.S.C. § 103.
1Lynch, “In vitro identification of Trichoderma harzianum as a potential antagonist of plant
pathogens,” Curr Microbiol, Vol. 16, pages 49-53 (1987)
2Sivan et al. (Sivan), “Degradation of fungal cell walls by lytic enzymes of Trichoderma
harzianum,” J. Gen Microbial, Vol. 135, pages 675-682 (1989)
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