Appeal 2007-0082
Application 10/171,498
immature embryos which are prepared for treatment by microparticle
bombardment, certain cells in the apical meristem region of corn have been
shown to produce a cell lineage which eventually gives rise to the female
and male reproductive organs” (id. at col. 4, ll. 53-57). “[T]he apical
meristem is generally regarded as giving rise to the lineage that eventually
will give rise to the gamete cells” (id. at col. 4, ll. 53-60).
We find, as did the Examiner, that
Tomes [ ] teach[es] a fertile transgenic Zea mays (maize) plant
comprising a foreign DNA that imparts herbicide resistance to said
plant (claim 2). Tomes [ ] also teaches that said transgenic maize
plants can be used to produce transgenic seed and progeny (column 4,
lines 65-67). All of the instantly rejected claims are directed to, in
general, [seed from] herbicide resistant transgenic fertile maize plants
. . . Tomes [ ] teaches a reduction to practice of transforming maize
embryogenic cell lines designated R21 and B73 X G35 in Examples
1-4 at columns 6-11 . . .
(Answer 4-5.)
The Examiner acknowledges that "Tomes [ ] does not specifically
teach a fertile transgenic maize plant which incorporates a nucleic acid
encoding a phosphinothricin acetyl transferase (PAT) enzyme." Answer 5.
The Examiner relies on Strauch for its disclosure of the PAT gene.
Strauch [ ] teach a transgene encoding phosphinothricin acetyl
transferase (PAT) from Streptomyces viridochromogenes, as well as
phosphinothricin resistant, transgenic plants and their propagules
containing said transgene (see claim 9). Strauch [ ] also teaches that
the S. hygroscopicus gene encoding phosphinothricin acetyl
transferase was also known in the art (column 2, lines 50-56).
(Answer 5.)
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