Appeal No. 2004-2317 Page 11
Application No. 09/771,938
examiner (Answer, page 9), it is unclear if a plant “that generally follows the trend
of the profile of Table 6, but which differs at one or a few loci, [would] be
considered in ‘conformity’ or ‘in accordance’ with the profile of Table 6.”
On this record, we understand the phrase “in accordance with” as it is
used in claims 6 and 11 to mean “the same”9. Stated differently, we understand
the claims to read:
6. The corn plant of claim 5, having:
(a) the same SSR profile as shown in Table 6; or
(b) the same isozyme typing profile as shown in Table 7.
11. The plant part of claim 10, wherein said cell is further defined as having:
(a) The same SSR profile as shown in Table 6; or
(b) The same isozyme typing profile as shown in Table 7.
Accordingly we reverse the rejection of claims 6 and 11 under 35 U.S.C.
§ 112, second paragraph.
9 During the February 10, 2005 oral hearing appellant’s representative confirmed that the phrase
“in accordance with” was intended to mean “the same.”
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