Appeal 2007-0862
Application 10/680,675
criteria of color, axial symmetry, freedom from obvious flaws, and
cotyledon development” (id. at 21: 4-5; see also id. at 23: 11-12 (“embryos
judged to be of high morphological quality, as previously defined”).
Thus, the evidence of record appears to show that the morphological
properties associated with embryos most likely to germinate into plants were
well-known in the art and routinely applied by technicians in hand-sorting
embryos. In light of the state of the art and the guidance and working
examples presented in the Specification, the Examiner has not adequately
explained why undue experimentation would be required to use the claimed
method to classify embryos according to their germination potential.
We also conclude that the Examiner has not adequately explained why
the claimed method could not be practiced, without undue experimentation,
using digital images of embryo organs rather than complete embryos. As
shown in the application’s Figure 1, a plant embryo is made up of embryo
organs (cotyledon, hypocotyl, and radical). Some of the morphological
properties commonly used to sort embryos are those of the embryo organs
(e.g., cotyledon development; Specification 2: 8). The Specification
provides a working example of the claimed method in which the observed
features used as inputs included presence of fused cotyledons, presence of
gaps between cotyledons, hypocotyl length, radical length, cotyledon length,
and cotyledon number (id. at 23: 16-19).
Thus, the evidence of record appears to show that the morphological
features of individual embryo organs, and not just those of the embryo
overall, are important indicators of which embryos are likely to germinate.
Granted, the claimed method may not be as accurate if only features of
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