Appeal No. 2004-2343 Page 10
Application No. 09/772,520
Claim 14 stands rejected under 35 U.S.C. § 112, second paragraph as
indefinite in the recitation of the phrase “[a]n essentially homogeneous population
of corn plants produced by growing the seed of the corn variety I026458.”
Answer, page 6. According to the examiner (id.), “[t]he I026458 seed can only
produce I026458 plants. … [Therefore,] [t]he population can … only consist of
I026458 plants.” Accordingly, the examiner finds it unclear “why the population is
referred to as ‘essentially homogeneous,’ since such populations can comprise
more than one variety of plant.” Answer, bridging sentence, pages 6-7.
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
I026458.” 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 I026458.9
9 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 I026458…’ would obviate the rejection.”
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