Appeal No. 1997-2385
Application No. 08/271,571
because it "does not specify which variety" of harvested plant it refers to (Answer, p. 9).
However, we see no reason why the skilled artisan would find the phrase "one variety," i.e.,
a single variety, of harvested plant indefinite when read in light of the specification, as
argued by appellants (Brief, para. bridging pp. 11-12).
With respect to the plural and singular use of therapeutic active "ingredient(s)," we
agree with appellants that
plants of a variety may contain a plurality of therapeutic active ingredients
and a plurality of enzymes. Some of such enzymes may have a lower
denaturation temperature than one therapeutic active ingredient but not
another or other therapeutic active ingredient(s) also present in the variety.
The use of therapeutic active ingredient in the singular following its use in the
plural in the preamble merely signifies this specificity. [Brief, p. 12.]
As to antecedent basis for the phrases "said predetermined" and "the rehydrated
plants" in claim 30, antecedent basis for "said predetermined denaturation temperature" is
found in the recited step of "determining" said temperature and antecedent basis for "the
rehydrated plants" is found in the recited rehydrating step of claim 30, respectively. We
remind the examiner that the failure to provide explicit antecedent basis for terms does not
always render a claim indefinite, if the scope of claim would be reasonably ascertainable
by those skilled in the art. Ex parte Porter, 25 USPQ2d 1144, 1146 (Bd. Pat. App. & Inter.
1992) ("controlled stream of fluid" provided reasonable antecedent basis for "the
controlled fluid").
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