Appeal No. 2007-0317 Page 7
Application No. 09/944,932
1. clearly state whether it is, or is not Appellant’s position that
Elsner is in conflict with LeGrice; and
2. clearly explain the basis for the position taken in part 1.
III. Importation of foreign nursery stock into the United States:
Appellant asserts that “a new plant variety cannot be anticipated without
direct access by the American public in the United States to the new plant or its
asexually reproduced progeny.” Brief, page 13. Appellant asserts that “[f]oreign
asexually propagatable plant material, unlike the information in a printed
publication, is not freely accessible to the American public on an unregulated
basis.” Brief, page 12. Appellant asserts that “[t]he Plant Quarantine Act of 1912
controls the importation of nursery stock into the United States . . . [and] imposes
rigorous importation requirements.” Id.
Accordingly, we require Appellant to:
1. clearly explain how the evidence on this record establishes that
United States importation requirements would have precluded a
person of ordinary skill in the art from obtaining a foreign
asexually propagatable clematis plant material, as claimed.
IV. The 1998 sale of the claimed plant in the United Kindgom:
The Examiner relies upon Appellant’s admission that the claimed plant
was sold in the United Kingdom as early as April 1, 1998. Accordingly, we
require Appellant to clearly explain:
1. how the evidence on this record establishes that the admitted
sale of the claimed plant should be considered “an obscure
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