Appeal No. 2004-0329 Page 10
Application No. 09/251,953
As stated above, the combination is not hindsight reconstruction. The
ADM article recognizes the problem to be solved, and the ordinary artisan would
have looked to the Poehlman textbook reference as providing methods of
growing seed stock to preserve its genetic identity in order to solve the problem
of preserving the genetic identity of crops such as grain. Moreover, the ADM
article and the Poehlman reference are not non-analogous art, as both relate to
preservation of crop identity, whether for the purpose of growing crops to obtain
seed stock or the purpose of growing crops for other uses such as processing
into food products. In addition, Poehlman provides a reasonable expectation of
success by teaching that the methods taught therein may result in a purity of
99.5%.
With respect to the declaration of Robert H. Peterson, the declaration
notes that the Poehlman reference “relates to seed certification as specified in
seed laws such as those of California and Minnesota,” and the “seed certification
process discussed in Poehlman and specified in state seed laws is not
applicable if the seed is not intended for sowing.” Peterson declaration, ¶ 17.
Mr. Peterson concludes that “[t]he subject matter [of the claims at issue] does
not pertain to plant breeding or certification of seed intended for sowing,” and
that it “is [his] opinion that the seed certification process of Poehlman is not
applicable to the activities of farmers and others involved in growing, harvesting
and processing crops.” Id. at ¶ 18. As noted by Mr. Peterson, the statements
contained in the declaration are merely his opinion. In addition, as noted above,
both Poehlman and the ADM article relate to the problem of preserving the
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