Appeal No. 2004-2343 Page 25
Application No. 09/772,520
1976). A description as filed is presumed to be adequate; unless or until
sufficient evidence or reasoning to the contrary has been presented by the
examiner to rebut the presumption. See e.g., In re Marzocchi, 439 F.2d 220,
224, 169 USPQ 367, 370 (CCPA 1971). The examiner, therefore, must have a
reasonable basis to challenge the adequacy of the written description.
Accordingly, it is the examiner who has the initial burden of establishing by a
preponderance of evidence that a person skilled in the art would not recognize in
an applicant’s disclosure a description of the invention defined by the claims.
Wertheim, 541 F.2d at 263, 191 USPQ at 97. On this record, the examiner
provides no evidence to support the assertion that single loci that govern, for
example, yield enhancement or enhanced yield stability are not described.
For the foregoing reasons, we are not persuaded by the examiner’s
arguments.
Claim 31
Claim 31 is drawn to a method of producing an inbred corn plant derived
from the corn variety I026458. The claimed method begins by crossing a plant of
the corn variety I026458 with any other corn plant. The method requires that the
progeny corn plant be crossed either to itself, or with any other corn plant, and
that the progeny of this cross be further crossed to itself, or with another corn
plant, and so on throughout several generations. As we understand it, claim 31,
in its simplest form, is directed to a method of using a plant of the corn variety
I026458 to produce an inbred corn plant.
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