Appeal 2007-1026
Application 10/405,819
“Results clearly show that either GA alone or ABA alone improve embryo
quality.”). (See supra at p. 5.)
As persuasively argued by the Examiner (Answer 3), Example 1
apparently uses a maintenance medium in which only GA is present. First,
Pullman states in Example 1 that GA is beneficial in the maintenance
medium (col. 15, l. 28-30). Secondly, it describes ABA as “newly added” to
the singulation media (col. 15, l. 15), the step immediately following culture
in the maintenance medium. Thus, it is logical to conclude that the
maintenance medium of claim 1 contained GA, but not ABA – as recited in
claim 1.
With a small number of conditions (three, i.e., GA, ABA, or GA and
ABA) and a preferred embodiment using only GA, but not ABA (Example 1
supra) in the maintenance medium, we find that the skilled worker would
have recognized and been in possession of a method in which culture in a
development medium lacking GA (Example 2) is preceded with culture in
maintenance medium containing GA, but no ABA.
Appellants argue that
there is no teaching or suggestion in Example 2 with respect to
the type of maintenance media used to produce the late stage
proembryos. . . [T]here is no teaching in [Pullman] . . . that
describes a method comprising the steps of culturing embryonic
pine tissue on maintenance medium comprising at least one
gibberellin and no abscisic acid, followed by culturing the
same embryonic pine tissue on a development medium that does
not comprise a gibberellin, as required by Claim 1.
(Reply Br. 2)
We do not find this argument persuasive. Pullman clearly teaches that
to reach the late stage embryo, the embryonic tissue must be subjected to
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