Appeal No. 1996-2470
Application 08/192,488
treating it with the microorganism Propionibacterium jensenii
or the genetic equivalents thereof (col. 3, lines 2-13).
Tomes states that only certain species of Propionibacteria
function effectively in the process (col. 3, lines 49-51).
The examiner states that “[t]he capability of
denitrification is deemed to be obvious to the
Propionibacterium of Tomes” (answer, page 4). The examiner,
however, has provided no evidence that feeding Tomes’ treated
silage to a ruminant would prevent nitrate intoxication, or
that appellants’ Propionibacterium acidipropionici strain P5
is a genetic equivalent of Tomes’ Propionibacterium jensenii.
Also, the examiner has not explained why Tomes would have
fairly suggested, to one of ordinary skill in the art, 1)
using appellants’ Propionibacterium acidipropionici strain P5
in his method, or 2) feeding silage treated by use of his
method to a ruminant intoxicated by nitrates.
The examiner argues that appellants admit on page 7,
lines 21-22 of the brief that Tomes’ microorganisms are the
genetic equivalent of appellants’ Propionibacterium
acidipropionici strain P (answer, page 6). As pointed out by
5
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