Appeal 2007-0082
Application 10/171,498
Representative claim 39 reads as follows:
39. Seed of a fertile, transgenic maize plant, said seed comprising a
chromosomally incorporated nucleic acid sequence encoding phosphinothricin
acetyl transferase and capable of being cultivated to produce a transgenic maize
plant having resistance to a herbicide comprising phosphinothricin, said seed
prepared by a process comprising the steps of:
(a) obtaining a parental fertile, transgenic maize plant comprising a
chromosomally incorporated nucleic acid sequence encoding phosphinothricin
acetyl transferase;
(b) breeding said parental plant with a second fertile maize plant to produce a
plurality of progeny fertile, transgenic maize plants, said progeny maize plants
including plants that express a chromosomally incorporated nucleic acid sequence
encoding phosphinothricin acetyl transferase;
(c) selecting from said progeny maize plants a plant having resistance to a
herbicide comprising phosphinothricin; and
(d) obtaining seed from said selected progeny maize plant.
Procedural History
During prosecution the Examiner made reference to a Declaration by Günter
Donn (Final Rej. 10; Br. 11). This Declaration, however, was not provided to
Appellants (Br. 12). Accordingly, on March 20, 2007, the Board issued an Order
under CFR 41.50(d) providing Appellants with a copy of the Günter Donn
Declaration and requiring that Appellants' respond to several inquiries based on
this Declaration. Appellants responded to the Order (Response) on May 29, 2007.
Claims 20-22 and 25-47 stand rejected under 35 U.S.C. 103(a). In
Appellants' Reply Brief dated August 29, 2006, Appellants stated that "[t]he appeal
of claims 20-22, 25-38 and 46-47 has been withdrawn." Accordingly, the appeal is
DISMISSED with respect to claims 20-22, 25-38, 46, and 47. This appeal
addresses remaining claims 39-45.
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