The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 11
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte ANTHONY WHITE
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Appeal No. 2003-2162
Application No. 09/939,491
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VACATUR AND REMAND
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Before WILLIAM F. SMITH, ADAMS, and GRIMES, Administrative Patent Judges.
WILLIAM F. SMITH, Administrative Patent Judge.
This appeal involves plant patent Application No. 09/939,491. The question
raised in this appeal involves whether evidence of foreign sales of the claimed
reproducible plant variety may enable an otherwise non-enabled printed publication
disclosing the plant, thereby creating a bar under 35 U.S.C. § 102(b). The Court of
Appeals for the Federal Circuit considered that issue in In re Elsner, 381 F.3d 1125,
72 USPQ2d 1038 (Fed. Cir. 2004), and held in the affirmative. Id. at 1128, 72 USPQ2d
at 1041. In so holding, the court stated that “[t]he foreign sale must not be an
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