Appeal No. 1999-1298
Application No. 08/667,167
those references.” Pro-Mold and Tool Co. v. Great Lakes Plastics Inc., 75 F.3d
1568, 1573, 37 USPQ2d 1626, 1629 (Fed. Cir. 1996). While a person of ordinary
skill in the art may possess the requisite knowledge and ability to modify the
protocol taught by the examiner’s combination of references, the modification is not
obvious unless the prior art suggested the desirability of the modification. In re
Gordon, 733 F.2d 900, 902, 211 USPQ 1125, 1127 (Fed. Cir. 1984). Here we see
no such reason to modify the references as applied, to obtain incubated primed
non-germnated seeds wherein the seed has a moisture content about 3 to 20%
units lower than the moisture content of nonincubated primed non-germinated seeds
of the same plant species.
Accordingly, in our opinion, the examiner has failed to provide the evidence
necessary to support a prima facie case of obviousness. Where the examiner fails
to establish a prima facie case, the rejection is improper and will be overturned. In
re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). Therefore,
we reverse the rejection of claims 45-65 under 35 U.S.C.
§ 103 as being unpatentable over Rowse in view of Finch-Savage, Hegarty,
Bradford, Bewley and Hartmann.
REVERSED
Douglas W. Robinson )
7
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: November 3, 2007