Appeal No. 2004-1968 Page 4
Application No. 10/000,311
Claims 26-28 stand rejected under 35 U.S.C. § 112, second paragraph as
indefinite in the recitation of the phrase “transformed so that its genetic material
contains one or more transgenes.”
Claims 6, 12-19, 21, 24, 26-28, 30, and 31 stand rejected under the
written description provision of 35 U.S.C. § 112, first paragraph.
Claims 6, 12-19, 21, 24, 26-28, 30 and 31 stand rejected under the
enablement provision of 35 U.S.C. § 112, first paragraph.
We reverse.
BACKGROUND
According to paragraph 23 of appellant’s specification, the present
invention
relates to the seeds of inbred corn line LH321, to the plants [and
plant parts] of inbred corn line LH321 and to methods for producing
a corn plant produced by crossing the inbred line LH321 with itself
or another corn line, and to methods for producing a corn plant
containing in its genetic material one or more transgenes and to the
transgenic corn plants produced by that method.
Paragraphs 44-55 of appellant’s specification disclose morphologic and “other”
characteristics of the inbred corn line LH321. On this record the examiner has
indicated that claims drawn to plants, plant parts, and seed of the corn variety
designated LH321 are allowable. See e.g., claims 1-5, 7, and 10, and page 3 of
the Final Rejection, mailed July 1, 2003, wherein the examiner states “[c]laims 1-
5, 7 and … [10] are allowed.”
A second aspect of the present invention comprises “hybrid corn seeds
and plants produced by crossing the inbred line LH321 with another corn line.”
Specification, paragraph 23, see also claims 12-16. On this record the examiner
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