Appeal 2007-1026
Application 10/405,819
It should be recognized that there is not one single set of
culturing conditions that will be suitable for achieving somatic
embryogenesis of all species or for all genotypes within a
species. . . . Adjustments in the mineral and plant hormone
constituents of the culture media must frequently be made
depending on the particular species and genotype being
cultured. This applies to each of the various stages of culturing
from explants to plantlets. These adjustments are considered to
be within the routine experimental capability of those skilled in
the art of tissue culture.
(Pullman, col. 22, l. 66 to col. 23, l. 9.)
Appellants contend that Pullman “teaches directly away from the
present invention because … [it] teaches the advantage of the combination
of abscisic acid and gibberellins” in the development media (Br. 10). See
also Reply Br. 4-5.
We do not find Appellants’ argument persuasive. The Examiner’s
conclusion that it would have been routine to optimize conditions is
reasonable. “[I]t is not inventive to discover the optimum or workable ranges
by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233,
235 (CCPA 1955). Moreover, Pullman (above) clearly states that
optimization “considered to be within the routine experimental capability of
those skilled in the art of tissue culture.” (Pullman, col. 23, ll. 8-10).
Appellants’ do not respond to this basis of the rejection, but argue that
Pullman only teaches the absence of GA as a “negative control” in Example
2 (Reply Br. 4). We agree with Appellants’ characterization of Example 2
with respect to the development medium without GA as being an
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