Appeal No. 2007-0317 Page 8
Application No. 09/944,932
solitary occurrence that would go unnoticed by those skilled in
the art.” Cf. Elsner, 381 F.3d at 1131, 72 USPQ2d at 1043; and
2. how the evidence on this record establishes that a person of
ordinary skill in the art who purchased the plant in 1998 would
not be able to reproduce the claimed plant without undue
experimentation. Cf. Elsner, 381 F.3d at 1131, 72 USPQ2d at
1044.
CONCLUSION
In conclusion, we require Appellant to address the foregoing matters.
We caution, however, that Appellant’s response is to be limited to the matters
outlined above. When necessary, Appellant may direct attention to evidence that
is of record in this application. This is not, however, an invitation to introduce
new evidence into the record.
TIME PERIOD FOR RESPONSE
A period of one month from the date of this order is set for Appellant’s
response. This time is non-extendable.
Failure to respond in a timely manner will result in dismissal of the appeal.
37 CFR § 41.50(d)
Toni R. Scheiner )
Administrative Patent Judge )
)
) BOARD OF PATENT
Donald E. Adams )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
Eric Grimes )
Administrative Patent Judge )
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