Appeal No. 2004-2317 Page 9
Application No. 09/771,938
of the particular application disclosure as it would be interpreted by one
possessing the ordinary skill in the pertinent art.” In re Moore, 439 F.2d 1232,
1235, 169 USPQ 236, 238 (CCPA 1971). Here, notwithstanding appellant’s
comments6, it is our opinion that a person of ordinary skill in the art would
recognize that an essentially homogeneous population of seed of the corn variety
I015036 is a population of seed that is generally free from substantial numbers of
other seed, e.g., wherein corn variety I015036 seed forms between about 90%
and about 100% of the total seed in the population.7
Accordingly, we reverse the rejection of claim 3 under 35 U.S.C. § 112,
second paragraph.
Claim 14
Claim 14 stands rejected under 35 U.S.C. § 112, second paragraph as
indefinite in the recitation of the phrase “[a]n essentially homogeneous population
of corn plants produced by growing the seed of the corn variety I015036.”
Answer, page 6. According to the examiner (Answer, bridging paragraph, pages
6-7), “[t]he I015036 seed can only produce I015036 plants. … [Therefore,] [t]he
population can … only consist of I015036 plants.” Accordingly, the examiner
finds it unclear “why the population is referred to as ‘essentially homogeneous,’
since such populations can comprise more than one variety of plant.” Answer,
page 7.
6 According to appellant (Brief, page 7), an essentially homogeneous population of seed, is a
population of seed that could be of non-uniform size and shape.
7 Cf. the examiner’s statement (Answer, page 6), “amending claim 3 to read ‘[a]n essentially
homogeneous population of corn seeds consisting essentially of seed of claim 1’, would obviate
this rejection.”
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