Appeal No. 1996-3887
Application 07/883,434
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of claims 16
through 22, 42, 43, 46 and 47, the only claims remaining in the application. Claims 16, 46
and 47 are representative and read as follows:
16. A composition for use as a biopesticide comprising an insecticidally effective
amount of entomopathogenic Steinernema riobravis isolated from the environment and an
inert carrier.
46. The composition as described in claim 16 wherein said Steinernema riobravis
are isolated and substantially pure.
47. The composition as described in claim 16 wherein said Steinernema riobravis
are isolated in pure form.
New grounds of rejection under 35 U.S.C. §§ 101 and 102(b) were entered in the
Examiner’s Answer (paper no.15, October 21, 1994). Following the entry of two Reply
Briefs (paper no.16, December 27, 1994; paper no. 20, July 20, 1995), two Supplemental
Answers (paper no. 19, May 17, 1995; paper no. 21, September 14, 1995), an
amendment (paper no. 17, December 27, 1994), and an Advisory Action (paper no. 18,
March 9, 1995), the claims stand rejected as follows:
I. Claims 16 through 22, 42 , 43, 46 and 47 under 35 U.S.C. § 101 (non-statutory
subject matter).
II. Claims 16 though 19, 21, 22, 42, 43, 46 and 47 under 35 U.S.C. § 102(b) as
anticipated by “the soil in a field in the lower Rio Grande Valley which soil contains the
indigenous nematodes of S. riobravis.”
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