Appeal No. 2003-0936
Application No. 09/532,806
pretending that his invention is more than what
it really is, or different from its ostensible
objects, that the patentee is required to
distinguish his invention in his specification.
Id. at 434.
In that light, we find that here the isolated nucleic acid
maize GRP promoter appellants claim comprising at least 95, 110,
125, 250, 400, 750, 1000, 1500, 2000, 2500, 3000, and 3536
contiguous nucleotide fragments of the 3536 contiguous nucleotides
of SEQ ID NO:1 of Figure 4 is so precisely defined in terms of
structure, formula, chemical name, and function, including
Figures 1-4 and examples, that persons skilled in the art
immediately would have understood what appellants claim as their
invention and could readily distinguish what appellants claim from
anything that is in common use, all that is known, and anything
proposed for production and use in the art. If an isolated
nucleotide sequence comprises at least 95 contiguous nucleotides of
the 3536 contiguous nucleotides of SEQ ID NO:1 and functions as a
GRP promoter when operably linked to a coding region, appellants
claim it.4 Whether the inventors “had possession of the claimed
4 The examiner has not adequately explained why
appellant’s Claims 14, 32, and 95 stand rejected under 35 U.S.C.
§ 112, first paragraph, for inadequate written description. As
per those claims, the GRP promoter comprises the complete nucleic
acid sequence of SEQ ID NO:1.
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