Appeal No. 2007-0317 Page 4
Application No. 09/944,932
distributed in countries other than the United Kingdom after April 1, 1998 under a
testing agreement . . . [that] prohibit[ed] distribution of plants”; no information was
in the PBR document relating to obtaining access to the plant or disclosing that
“Charam has been sold as Redwing;” and that Euphorbia Charam can only be
reproduced asexually,” with propagation “enhanced by dipping the cuttings in
warm water prior to insertion.” See Paper, received May 6, 2005, pages 1-2.
Upon receipt of this information, the Examiner rejected claim 1 under 35
U.S.C. § 102(b) as being anticipated by Plant Breeder’s Right grant no.
03000204. In support of this rejection the Examiner directs attention to
“[A]pplicant’s admission that ‘Charam’ was sold in the United Kingdom as early
as April 1[,] 1998 (page 3 of reply filed October 18, 2002).” Office Action, mailed
August 31, 2005, page 2. The Examiner finds that the claimed plant is a
Euphorbia plant, and “[t]he reproduction of Euphorbia spp. is clearly explained in
the new Royal Horticultural Society Dictionary of Gardening on page 245.” Id.
According to the Examiner “that Euphorbia ‘Charam’ was sold under the trade
name Euphorbia Redwing . . . does not change the fact that one of ordinary skill
in the art was able to buy and reproduce the plant.” Office Action, mailed August
31, 2005, page 3.
From this the Examiner reasons that Plant Breeder’s Right grant no.
03000204 is a publication that is enabled because the disclosed cultivar could
have been propagated from publicly available materials, and one skilled in the art
would have the knowledge of how to do so, given the notoriety of various
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: September 9, 2013