Appeal 2006-2166
Application 10/727,442
disclosed ability to obtain shoots from internodal segments of shoot cultures
obtained from a 4-year old plant (i.e., beech tree) provides a reasonable
expectation that using a beech “log” (e.g., a portion of a beech tree branch
having, for example, a diameter of one inch or less) would have been
successful (Cuenca 214, col. 1 and 216, col. 1, Table 1). Moreover, Saul’s
disclosure that 20-25 year old trees may be used as a source of plant material
for propagation further supports a reasonable expectation of success in
combining Saul’s “lignified cuttings” (i.e., “log”) method with Cuenca’s
cytokinin treatment method. Accordingly, we determine that Cuenca and
Saul provide a reasonable expectation that treating a “log” (e.g., a tree
branch having a diameter of one inch or less) with cytokinins according to
Cuenca’s disclosed process would produce shoots thereon.
Appellant argues that Cuenca teaches away from using a “log” by
disclosing that “‘Although adventitious shoot propagation is generally
undesirable for clonal micropropagation, because it can result in somaclonal
variation, it presents an opportunity to regenerate plants from genetically
transformed clones’” (Br. 12; emphasis deleted). This argument seems to be
premised on Appellant’s apparent belief that a “shoot” and a “log” are the
same or similar, such that there would have been no motivation for using a
“log” in Cuenca’s method because somaclonal variation could result as may
occur with a “shoot.” Viewed from this perspective, Appellant’s argument
reinforces our above determination that the appeal record supports a belief
there is overlap between the terms “shoot” and “log” as defined by
Appellant.
In any event, in the cited passage, Cuenca only discloses that shoot
propagation is “generally undesirable” and that “somaclonal variation” (i.e.,
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