Appeal No. 2003-1918
Application No. 08/945,722
Rather than reiterate the respective positions advocated by
the appellants and by the examiner concerning these rejections,
we refer to the brief and reply brief and to the answer for a
complete exposition thereof.
OPINION
For the reasons which follow, we will sustain each of the
above noted rejections.
With respect to each of the rejections before us, the
appellants implicitly concede that the “Superlose”-based starch
of Elizer contains the amylose content required by the appealed
independent claims but argue that “such starch would not fall
within the present invention as it is not a starch ‘comprising
granules extracted from a potato plant’” (brief, page 6).
This argument is unpersuasive with respect to independent
claim 64 since this claim is not limited to “a starch ‘comprising
granules extracted from a potato plant’” (id.). See In re Self,
671 F.2d 1344, 1348-49, 213 USPQ 1, 5 (CCPA 1982).
Although independent claim 1 contains the limitation in
question, the appellants’ argument also is unpersuasive with
respect to this claim. Concerning this limitation, the
claims will stand or fall with independent claims 1 and 64.
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