Appeal No. 2000-1910 Page 4
Application No. 08/785,716
In this regard we remind the examiner that “[u]nder 35 U.S.C. § 102, every
limitation of a claim must identically appear in a single prior art reference for it to
anticipate the claim.” Gechter v. Davidson, 116 F.3d 1454, 1457, 43 USPQ2d
1030, 1032 (Fed. Cir. 1997). In our opinion, since the examiner recognizes that
“Greene does not specify any limits to glutenin addition to wheat flours...” Greene
cannot anticipate the claimed invention that requires a glutenin content that is “at
least about 30% different than the glutenin content in the endosperm of a mature
seed from a parental wheat plant.”
Accordingly, we reverse the rejection of claim 20 under 35 U.S.C. §102(b)
as anticipated by Greene.
Bekes:
The rejection over Bekes, however, stands on a different footing.
According to the examiner (Answer, page 4) Bekes “discloses the addition of up
to 30% more glutenin to wheat flour in two different methods….” We note that
appellants do not contest this finding of the examiner. Instead, appellants argue,
with reference to the 1998 Anderson Declaration3, (Brief, bridging paragraph,
pages 3-4):
Here the cited art teach that purified glutenins may be added
to wheat flour to alter its physical properties. However, flour so
made by adding exogenous purified glutenins to natural flour is
demonstrably different in composition and function than that
required by [c]laim 20. For example, the claimed flour is derived
from a particular recombinant plant having a novel genome. This
novel genome is inherently present in the plant, any seed derived
from such plant, and any flour milled from such seed….
3 Brief, Appendix C.
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