Appeal No. 2004-2317 Page 10
Application No. 09/771,938
As appellant discloses (specification, page 6), “[t]he population of inbred
corn seed of the invention can further be particularly defined as being essentially
free from hybrid seed. The inbred seed population may be separately grown to
provide an essentially homogeneous population of inbred corn plants designated
I015036.” As we understand the claim, growing the seed of claim 3, for example,
would produce an essentially homogeneous population of corn plants of the corn
variety I015036.8
In addition, we direct the examiner’s attention to Appeal No. 2005-0396,
wherein a claim similar to claim 14 was presented for our review. In Appeal No.
2005-0396, the examiner of record indicated that claim 14, directed to “[a]n
essentially homogeneous population of corn plants produced by growing the
seed of the corn variety I180580….” was allowable. Accordingly, we find that the
examiner has treated claim 14 in a manner that is inconsistent with the
prosecution of claim 14 in 2005-0396. As we understand it, the only difference
between claim 14 as it appears in Appeal No. 2005-0396 and the instant appeal
is the variety of corn seed from which the plant is produced.
Accordingly we reverse the rejection of claim 14 under 35 U.S.C. § 112,
second paragraph.
Claims 6 and 11
Claims 6 and 11 stand rejected under 35 U.S.C. § 112, second paragraph
as indefinite in the recitation of the phrase “in accordance with.” According to the
8 Cf. The examiner’s statement (Answer, page 8), amending claim 14 “to read, ‘[a]n essentially
homogeneous population of corn plants produced by growing a population of corn seed
consisting essentially of the seed of corn plant I015036…’ would obviate the rejection.”
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