Appeal No. 2004-2343 Page 7
Application No. 09/772,520
deposited under ATCC Accession No. PTA-3228; (b) crossing the
progeny plant with itself or a second plant to produce a seed of a
progeny plant of a subsequent generation; (c) growing a progeny
plant of a subsequent generation from said seed of a progeny plant
of a subsequent generation and crossing the progeny plant of a
subsequent generation with itself or a second plant; and (d)
repeating steps (c) and (d) for an addition 3-10 generations to
produce an inbred corn plant derived from the corn variety I026458.
In the method, it may be desirable to select particular plants
resulting from step (c) for continued crossing according to steps (b)
and (c). By selecting plants having one or more desirable traits, an
inbred corn plant derived from the corn variety I026458 is obtained
which possesses some of the desirable traits of corn variety
I026458 as well potentially other selected traits.
According to the examiner (Answer, page 36), “[t]he patentability of the method
of claim 31 does not lie in the acts of the process, which are the simple acts of
crossing corn plants, allowing progeny seed to be produced, and growing
progeny plants from the seed….” Therefore, as we understand this aspect of the
claimed invention (e.g., claim 31), the intent is not to claim a specific inbred corn
plant resulting from the claimed process. See claim 31. Instead, as we
understand it, claim 31 is drawn to a process wherein an inbred corn plant is
derived from the corn variety I026458.
As appellant explains (specification, page 3),
The development of uniform corn plant hybrids requires the
development of homozygous inbred plants, the crossing of these
inbred plants, and the evaluation of the crosses. Pedigree breeding
and recurrent selection are examples of breeding methods used to
develop inbred plants from breeding populations. Those breeding
methods combine the genetic backgrounds from two or more inbred
plants or various other broad-based sources into breeding pools
from which new inbred plants are developed by selfing and
selection of desired phenotypes. The new inbreds are crossed with
other inbred plants and the hybrids from these crosses are
evaluated to determine which of those have commercial potential.
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