Appeal No. 2004-1968 Page 19
Application No. 10/000,311
We note, however, that claims 26-28 (those which are drawn to a plant
transformed with one or more transgenes) do not require that the plant maintain
the genetic and morphological fidelity of the original inbred variety. Nor do
claims 26-28 require that the resultant plant retain all of the “original plant’s
genome” as a result of a backcrossing technique. As appellant explains
(specification, paragraph 41, emphasis added),
[s]ingle locus converted or conversion plant refers to plants which
are developed by a plant breeding technique called backcrossing
wherein essentially all of the desired morphological and
physiological characteristics of an inbred are recovered in addition
to the single locus transferred into the inbred via the backcrossing
technique or via genetic engineering.
We find nothing in the appellant’s specification to indicate that the single locus
converted plant retains all of the morphological and physiological traits, or all of
the genome, of the parent plant in addition to the single locus transferred via the
backcrossing technique. Accordingly, we disagree with the examiner’s
assertions to the contrary.
Further, while the examiner does not explain the basis for the rejection of
claim 6 under this heading, we note as discussed supra, claim 6 is drawn to a
corn plant produced by growing the seed of corn inbred line LH321 further
defined as comprising a gene conferring male sterility. In this regard, we note
that appellant’s specification discloses (paragraph 19), “several methods of
conferring genetic male sterility [that are] available [in the art].” We find no
evidence in the Answer to suggest this disclosure in appellant’s specification is
incorrect, or insufficient. In addition, we note that the examiner’s rejection of
claim 6 is inconsistent with the manner in which a similar claim was treated in
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