Appeal No. 2007-0317 Page 6
Application No. 09/944,932
the knowledge of the skilled artisan and may be considered to provide the public
with access to Appellants’ inventions.” Elsner, 381 F.3d at 1130, 72 USPQ2d at
1042.
Accordingly, we require Appellant to:
1. clearly state the rule of law which supports Appellant’s position
that, in contrast to the holding in Elsner, the public use and
availability of a plant variety outside of the United States is not
material to a determination of the patentability of a plant variety
in the United States under 35 U.S.C. § 102(b); and
2. clearly explain the basis for the position taken in part 1.
II. LeGrice:
Appellant asserts (Brief, page 12), “[t]he court in In re LeGrice established
a perfectly workable and rational approach for applying the policy and the
language of [§] 102(b) to this unique situation.” Appellant does not, however,
address Elsner.
The Elsner court found that their holding did not conflict with LeGrice
which
decided only the narrow issue whether a printed publication of a
plant patent that is not enabled is a statutory bar. That decision did
not address the manner in which a publication may be enabled, and
it did not decide whether other evidence such as the availability of
an invention through foreign sales may be considered in
determining whether a printed publication enables a skilled artisan
to reproduce a claimed plant. In fact, there was no mention of
sales in the LeGrice opinion. We therefore conclude that LeGrice
left that issue open, and our decision today is not inconsistent with
LeGrice.
Elsner, 381 F.3d at 1130, 72 USPQ2d at 1042-43.
Accordingly, we require Appellant to:
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