Appeal No. 2004-0329 Page 12
Application No. 09/251,953
combination provides no expectation of success of achieving the above
contamination levels using application susceptibility test results. See id. at 15-
16.
First, Poehlman teaches that simply by using the methods disclosed by
that reference, that certified seed having a purity of 99.5%, and thus a
contamination level less than 0.5%, can be achieved. Second, the claims do not
exclude any screening method, including visual screening methods. And as
noted by the specification, the certification or screening step that insures an
Identified Preserve (IP) variety developed from non-genetically modified seed
“can be verified using plant characteristics such as plant hybrid, maturity, flower
color, and leaf shape,” id. at 6, thus the specification does not exclude the use
of visual inspection and screening. Third, appellants’ invention is not drawn to
methods of distinguishing between genetically modified and non-genetically
modified plants, but to a “method of growing, harvesting, processing, packaging,
and distributing non-genetically-modified seeds and grains [that] utilizes a
comprehensive process which encompasses the entire food production system
from farms to supermarkets.” Id. at 2. Fourth, we find the teaching of Poehlman
that simply by using the methods disclosed by that reference, that certified seed
can having a contamination level less than 0.5% to be exemplary only, and not
limiting. Moreover, the level of contamination is a result effective variable, and it
would have been obvious to optimize the process of Poehlman to achieve any
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