Appeal No. 2004-2343 Page 30
Application No. 09/772,520
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 29) 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.), “[t]he [examiner’s] indication[19] that the
references concerning petunias, sugar beets and tomatoes apply to corn is made
without any support.” That the examiner has failed to identify (Answer, page 45)
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 11) “is extremely advanced and well
known in the art….” In this regard, we agree with appellant (Brief, page 30;
Accord Reply Brief, page 11), the examiner has improperly placed the burden on
appellant to demonstrate that the examiner’s unsupported assertion is not true.
We remind the examiner, as set forth in In re Wright, 999 F.2d 1557, 1561-62, 27
USPQ2d 1510, 1513 (Fed. Cir. 1993):
19 See Answer page 45, wherein the examiner asserts “[l]inkage drag appears to be a
phenomenon that occurs in all plant types.”
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