Appeal No. 2004-2317 Page 29
Application No. 09/771,938
The examiner appears to appreciate (Answer, page 43) that appellant’s
specification provides an example of a converted plant. See e.g., specification,
pages 35-36. However, for the foregoing reasons, we are not persuaded by the
examiner’s assertion (Answer, page 43) that the specification provides “no
indication that all of the morphological and physiological traits of [this converted]
… corn plant were recovered, and that only one single locus was transferred
from the donor plant.” To the contrary, the examiner provides no evidence that
the converted plant exemplified in appellant’s specification did not retain
essentially all of the desired morphological and physiological characteristics of
the inbred in addition to the characteristics conferred by the single locus
transferred into the inbred via the backcrossing technique.
Further, we recognize appellant’s argument (Brief, page 27) that the
examiner failed to establish a nexus between Hunsperger’s discussion of
petunias; Kraft’s discussion of sugar beets; and Eshed’s discussion of tomatoes,
and the subject matter of the instant application - corn. Absent evidence to the
contrary, we agree with appellant (id.), the examiner’s opinion17 that the
references concerning petunias, sugar beets and tomatoes apply to corn is
unsupported on this record. That the examiner has failed to identify (Answer,
page 41) an example “in the prior art of plants in which linkage drag does not
occur,” does not mean that linkage drag is expected to occur in corn breeding,
which according to appellant (Reply Brief, page 10) “is extremely advanced and
well known in the art….” In this regard, we agree with appellant (Brief, page 28;
17 See Answer page 41, wherein the examiner asserts “[l]inkage drag appears to be a
phenomenon that occurs in all plant types.”
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