Appeal 2006-2166
Application 10/727,442
2. Claims 2-6, 9, 10, and 13 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Cuenca in view of Saul and further in view of
Bryan.
3. Claims 11 and 12 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cuenca in view of Saul and further in view of
Bryan and further in view of Appellant’s Specification.
4. Claim 14 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Cuenca in view of Saul and further in view of Wang.
Appellant separately argues claims 1 and 14. Accordingly, we
address Appellant’s arguments regarding those claims in our opinion below.
OPINION
35 U.S.C. § 103(a) REJECTION OVER CUENCA IN VIEW OF SAUL
Appellant argues that there is no suggestion to combine the references
to arrive at the claimed invention (Br. 10). Appellant contends that
Cuenca’s disclosure, directed to using in vitro juvenile internodal segments,
provides no suggestion or motivation to use logs (Br. 10-11). Appellant also
contends that Cuenca teaches away from using logs because Cuenca states,
“‘Although adventitious shoot production is generally undesirable for clonal
micropropagation, because it can result in somaclonal variation [i.e., genetic
variation between clones], it presents an opportunity to regenerate plants
from genetically transformed clones’” (Br. 12; emphasis deleted). Appellant
contends that because Cuenca’s abovenoted statement teaches away from
using logs, there is no reasonable expectation of success to apply Cuenca’s
in vitro method to propagate identical adult plants from logs (Br. 12).
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