Appeal No. 1996-3887
Application 07/883,434
Bergy provides guidance here as well. As pointed out by appellants, the court in
Bergy agreed that “a pure strain of a microorganism was patentable as ‘the product of a
microbiologist’, and ruled that a claim limited to a pure culture of a naturally occurring
microorganism: ‘clearly does not define a product of nature’ [] and thus constituted
statutory subject matter” (Reply Brief, paper no. 16). Similar limitations are at issue here.
In its broadest aspect, the claimed composition comprises Steinernema riobravis
“isolated from the environment” in combination with an inert carrier. Claim 46 further
specifies that the composition comprises ”isolated and substantially pure” Steinernema
riobravis; claim 47 specifies that the nematodes are “isolated in substantially pure form.”
In determining whether these limitations preclude interpreting the claimed
composition as a product of nature, we begin with the proposition that “the language
employed [in a claim] must be analyzed -- not in a vacuum, but always in light of the
teachings of the prior art and of the particular application disclosure as it would be
interpreted by one possessing the ordinary level of skill in the pertinent art.” In re Moore,
439 F.2d 1232, 1235, 169 USPQ 236, 238 (CCPA 1971) (footnote omitted).
The phrase “isolated from the environment” is not expressly defined in the
specification, but the process of isolating the nematode from soil samples is distinguished
from its initial recovery (or excavation) from the Lower Rio Grande Valley. For example, at
pages 5 and 6, the specification teaches:
As described in the Examples herein, Steinernema riobravis may be initially
recovered from soil samples taken from corn fields . . . Following isolation
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