Appeal No. 1996-3887
Application 07/883,434
individual nematode from another nematode and is pure nematode as it is a
nematode and not part some other worm or multicellular animal, rather the
nematode is per se pure nematode regardless of where it is located or
produced . . .
According to the examiner’s analysis and conclusion, a nematode “isolated from
the environment” is always identical to a nematode “in the environment.” This position is
untenable on its face.
Accordingly, the rejection of claims 16 through 19, 21, 22, 42, 46 and 47 under 35
U.S.C. § 102(b) is reversed.
35 U.S.C. § 112, second and forth paragraphs
All of the claims on appeal stand rejected as indefinite under 35 U.S.C. § 112,
second paragraph, for the reasons set forth on page 16 of the Examiner’s Answer (paper
no. 15) and pages 18 through 21 of the Supplemental Examiner’s Answer (paper no. 19).
Claims 16, 46 and 47 are separately rejected under 35 U.S.C. § 112, second paragraph,
for the reasons set forth on page 23 of paper no. 19.
Merely by way of example, the examiner believes that claim 16 (drawn to a
“composition for use as a biopesticide”) is indefinite because “it is not clear . . . that the
insecticidally effective amount of the nematode is the biopesticide amount or whether the
inert carrier is the biopesticide or whether or not the ‘inert carrier’ is inert to the
environment or inert to the nematode” (paper no. 15, page 16). The phrase “isolated from
the environment” is said to be indefinite because it is not clear whether it refers to “isolated
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