Appeal No. 2005-1454
Application No. 10/315,763
and 47
With regard to claim 7, appellant sets forth his position on
pages 10-11 of the brief. Claim 7 recites that the cereal grain
is a red wheat. Appellant argues that red wheat can be treated
to have the visual appearance of white wheat, while still
retaining the genetic profile of the color producing gene alleles
of red wheat. Appellant argues that red wheat in accordance with
the present invention can be utilized with food products only
previously employed in connection with white wheat.
Beginning at page 5 of the answer, the examiner states that
the use of red wheat is not considered patentably distinct from
the wheat used in Devic. The examiner states it would have been
obvious to select any type of wheat. We agree. As stated supra,
Devic teaches the plant materials that can be bleached include
all products of vegetable origins which are used for nutrition,
either in their entirety or parts thereof. Exemplary of such
products are cereal grains (wheat, maize, oats, barley, rice,
etc.), peels, skins, pips of fruits, bran from oil plants, such
as sunflowers, bran from cereals”. See column 1, lines 18-24 of
Devic. In view of this disclosure, we determine that it would
have been obvious to select the type of wheat recited in claim 7.
With regard to claim 12, appellant sets forth arguments on
pages 12-13 of the brief. Claim 12 recites that the treatment
U.S.C. § 103.
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