Appeal No. 2004-0329 Page 5
Application No. 09/251,953
DISCUSSION
Claims 24-30, 35-39, 42, 45-51 and 56-64 stand rejected under 35 U.S.C.
§ 103(a) as being obvious over the combination of ADM and Poehlman. We
affirm this rejection.
ADM is cited for teaching the desirability of separating genetically
modified crops, such as corn and soybeans. See Examiner’s Answer, page 4.
The rejection acknowledges that the ADM article does not disclose the steps for
accomplishing that separation.
In order to make up the deficiency of the ADM article, the rejection relies
on Poehlman. According to the Answer,
Poehlman, however, discloses the method steps of selecting non-
genetically modified seed for planting (page 451, col. 2, section (a),
defined as using Foundation seed), certifying the seed was planted
and grown under conditions effective for harvesting a crop
containing 5%, 1%, 0.1% or 0.01% or less genetically modified
seed, (Page 451, col. 2, sections b and d; Examiner considers
identifying and inspecting acreage for off-types to fall within the
ambit of certifying seed was planted and grown), and harvesting,
processing (defined as cleaning seed with screens etc.) and
certifying the crop (page 451, col. 2, section f). The purity of the
seed at the 5% or 1% or less level is shown by the certified seed
tag (page 450, Fig. 20.2) with the row for “Other Crop Seed” and
the accompanying percentage column. It would have been obvious
to one of ordinary skill in the art at the time of the invention to
modify the method of ADM by employing the steps as disclosed by
Poehlman so as to keep seed pure under changing market
conditions so as to maintain markets and prices.
Id. at 4
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