Appeal No. 2004-2343 Page 9
Application No. 09/772,520
However, as disclosed in appellant’s specification (page 5),
[e]ssentially homogeneous populations of inbred seed are those
that consist essentially of the particular inbred seed, and are
generally free from substantial numbers of other seed, so that the
inbred seed forms between about 90% and about 100% of the total
seed, and preferably, between about 95% and about 100% of the
total seed.
Accordingly, we disagree with the examiner’s assertion (Answer, page 6)
that claim 3 is unclear simply because it may contain seed other than the seed of
the corn variety I026458. We remind the examiner that claim language must be
analyzed “not in a vacuum, but always in light of the teachings of the prior art and
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
comments7, 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
I026458 is a population of seed that is generally free from substantial numbers of
other seed, e.g., wherein corn variety I026458 seed forms between about 90%
and about 100% of the total seed in the population.8
Accordingly, we reverse the rejection of claim 3 under 35 U.S.C. § 112,
second paragraph.
Claim 14
7 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.
8 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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