Appeal 2007-1026
Application 10/405,819
experimental control; however, this does not detract from the fact that
Example 2 is an anticipatory disclosure of the subject matter of claim 1.
Appellants have not explained why it would not have been obvious, as
asserted by the Examiner, to optimize the culture conditions to have
achieved the claimed subject matter, e.g., where the cultured tissue is a
suspensor mass (claim 2) or to have selected a particular amount of GA in
the maintenance medium (e.g., claims 7-9), conditions which do not relate to
the development medium.
Accordingly, we affirm the rejection of claim 1. Claims 2-26 and 29
fall with claim 1 because they were not separately argued.
Claim 28
The Examiner bears the initial burden of showing unpatentability.
In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993).
In this case, the Examiner has not explained why the four step culture
method of claim 28 would have been obvious to the person of skill in the art
in view of Pullman. Consequently, because the Examiner did not meet her
burden, we agree with Appellants that the rejection is improper (Reply Br.
5). The rejection of claim 28 is reversed.
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