Appeal No. 1998-3388
Application 08/370,551
For appellants part, should further prosecution occur in this application, we would
note that the question of whether Criddle or Lewis are enabling with respect to the claim
designated Pseudomonas strain is not dependent on the deposit of the microorganism.
The rules which relate to the deposit of biological materials provide, in pertinent part,
that "[b]iological material need not be deposited, inter alia, if it is known and readily
available to the public or can be made or isolated without undue experimentation." (37
CFR § 1.802). Here, it would reasonably appear that Criddle describes where to obtain
the Pseudomonas strain of the instant invention, i.e. Seal Beach California, as well as
provided significant information to assist in the isolation, identification and
characterization of any microorganism isolated from that site and suspected of being
the claim designated microorganism. We leave to the examiner in the first instance to
determine whether the information is sufficient to enable the microorganism given the
description provided by Criddle in a manner which would reasonably support a
conclusion that the reference is enabling.
SUMMARY
To summarize, the rejection of claims 1, 3 and 9 - 11 under 35 U.S.C. § 102(b),
over Criddle is reversed. The rejection of claim 1, 3, and 9 - 11 under 35 U.S.C. §
102(a) is remanded to the examiner for further consideration.
REVERSED and REMANDED
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