Appeal No. 2004-0329 Page 11 Application No. 09/251,953 genetic identity of crops, whether for seed production or for food production. We also note in passing that most of the claims, such as claim 24, do not exclude the possibility of using the processed seeds as seed stock. The fact that genetically modified seeds did not even exist as of the 1979 publication date of Poehlman is irrelevant. Poehlman provides a method of preserving the genetic identity of seeds. The ADM article provides the current problem to be solved, the separation and the preservation of the identity of non- genetically modified crops. The ordinary artisan would have looked to methods of preserving genetic identity that were well known in the art, such as those taught by Poehlman, and applied them to the problem recognized by the ADM article. Finally, the fact that the scale of operations involved in producing a crop may be larger than that involved in producing seed stock is also moot as the claims do not specify any scale, and thus read on the production of smaller crops as well as larger crops. Appellants argue further that the visual screening methods taught by Poehlman cannot distinguish between genetically modified and non-genetically modified plants, “let alone a specific GMO contamination percentage, e.g., 5% or less, 1% or less, 0.1% or less, or 0.01% or less.” Appeal Brief, page 8. With respect to claims 25-30, 35-38, 46-51 and 56-59, appellants argue that the combination does not suggest a level of GMO contamination of 5% or less; 1% or less; 0.1% or less; or 0.01% or less; and thus the combination does not provide a reasonable expectation of success of achieving those contamination levels. See Appeal Brief, pages 12-14. In addition, appellants argue that thePage: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 NextLast modified: November 3, 2007