Appeal 2006-2166
Application 10/727,442
genetic variation between clones) “can” occur, not that it will always occur
by using “adventitious shoot propagation.” In addition, one skilled in this
art would have understood that, as with the shoots produced from a “log”
using Appellant’s claimed method (Specification 1: 16-18), the shoots
produced from each of Cuenca’s internodal segments would necessarily
have the same genetic characteristics because they are produced from the
same internodal segment. Thus, for each internodal segment the shoots
produced would not have “somaclonal variation” (i.e., they would be
genetically identical). Therefore, we determine that Appellant’s cited
passage from Cuenca does not teach away from using a “log” as claimed and
disclosed by Appellant.
Contrary to Appellant’s argument, there is motivation and suggestion
for the combination of Saul’s “lignified cuttings” (i.e., “log”) method with
Cuenca’s method for producing adventitious buds from internodal segments
of beech. In addition to the Examiner’s determination that Saul provides
motivation for the combination with Cuenca (Final Office Action 2), Cuenca
provides motivation for the combination as well: to obtain a shoot that is
“readily proliferated” (Cuenca, abstract). We conclude that, in light of the
combined teachings of Cuenca and Saul, it would have been obvious for one
of ordinary skill in the art to treat a “log” (e.g., a tree branch having a
diameter of one inch or less) with cytokinin according to Cuenca’s method
to produce shoots for further propagation.
For the foregoing reasons, we sustain the Examiner’s § 103(a)
rejection of argued claim 1 and non-argued claims 7 and 8.
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