Appeal No. 1996-1042
Application No. 07/810,138
The deposit number CBS 432.90 is also recited in independent
claim 9, and the examiner does not contend that appellants
fail to comply with the appropriate regulations governing the
deposit of biological materials. See 37 CFR § 1.801 et seq.
On these facts, we find that appellants' deposit satisfies the
statutory requirement for patentability under 35 U.S.C. § 112,
first paragraph.
The examiner argues that the claimed biologically pure
culture of asporogenous strain Bacillus subtilis SMS275 has a
frequency of reversion to spore formers of less than 10 , and-8
that the specification fails to teach how to make an
asporogenous strain of Bacillus subtilis having that
characteristic. In our judgment, however, the examiner has
not provided adequate reasons explaining why any person
skilled in the art would doubt the truth or accuracy of
appellants' statement in the specification that their
biologically pure culture of asporogenous strain Bacillus
subtilis SMS275 has a frequency of reversion to spore formers
of less than 10 . See In re Armbruster, 512 F.2d 676, 677-78,-8
185 USPQ 152, 153 (CCPA 1975). Accordingly, the examiner has
not established a prima facie case of lack of enablement and
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