Appeal No. 2006-0102 Page 4
Application No. 09/732,439
(Answer, page 11), the term “increased is a relative term lacking a comparative
basis.”
In response, appellants assert (Brief, page 8), “[a] plain reading of the
claim indicates that the enzyme is increased relative to a Zea mays plant that
lacks the recombinant DNA segment. No other logical reading can be made of
the claim given the text.” “The Examiner does not dispute that a plain reading of
the claim could indicate that the enzyme is increased relative to a Zea mays plant
that lacks the recombinant DNA segment.” Answer, page 24. Nevertheless, the
examiner finds (id.), “a plain reading of the claim could also indicate that the
enzyme is increased relative to the level of the endogenous enzyme in the
transgenic Zea mays plant. . . .” It would appear to us that this interpretation of
term “increased” is the same as interpreting the claim to read “an increase
relative to a Zea mays plant that lacks the recombinant DNA segment.”
Accordingly, we are not persuaded by the examiner’s argument.
Alternatively, the examiner asserts that the term “increased” could be
interpreted to be “relative to the level of the enzyme produced under non-stress
conditions. . . .” We must confess that we are somewhat confused as to the
basis for the examiner’s argument. According to appellants’ specification
(page 5):
[t]he enzyme encoded by the DNA sequence is expressed in the
transgenic Zea mays plant or cell so that the level of the
osmoprotectant in the cells of the transgenic Zea mays plant is
substantially increased above the Ievel in the cells of a Zea mays
plant which only differ from the cells of the transgenic Zea mays
plant in that the DNA segment is absent.
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