Appeal No. 2006-0355
Application No. 09/905,574
4. A botanical “description of the new variety with colour terminology in
accordance with the Royal Horticultural Society Colour Chart, 1986 edition”
is provided on pages 2-6 of the specification. According to Appellants,
“[t]he specimens described were grown in Havelock North and Clyde,
Central Otago, New Zealand” and “[t]he observations were made in the
2001 season on trees which were four years old at the time” (id. at 2: 13-15).
5. Claim 1 stands rejected under 35 U.S.C. § 112, first and second
paragraphs, for a number of reasons, listed as items A-R on pages 3-4 of the
Answer. Most of the reasons concern Appellants’ use of the terms
“medium,” “medium to large,” “plump,” etc.
6. The Examiner did not reject the claim to ‘GL4/66’ under 35 U.S.C.
§ 102 as anticipated by the parent variety ‘Yumyeong,” or any other peach
tree.
ANALYSIS
According to the Examiner, “complete and precise descriptions are
needed to aid in examining future plant patent applications. The
distinguishing feature of the claimed plant appears to be the color of the
fruit. The less detail that is provided in describing the rest of the plant, the
more difficult it will be to distinguish any future fruited sports of the
‘GL4/66’ variety” (Answer 6). “[T]he patenting of [a] first plant (with a
vague description) would create an obstacle to the patenting of future
varieties” (id. at 7), and “[s]ubsequent applicants . . . would find it difficult
to distinguish their plant from the first . . . when faced with a rejection under
35 U.S.C. § 102(b)” (id.).
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