Appeal 2007-2681
Application 10/680,676
basis for selecting embryos is old and well known – embryos of a certain
morphology tend to germinate better than others” (Answer 5).
The Specification states that embryos “that are most likely to
successfully germinate into normal plants are preferentially selected using a
number of visually evaluated screening criteria . . . [including] axial
symmetry, cotyledon development, surface texture, [and] color” (Spec.
2: 6-9). The Specification also provides working examples of the claimed
method to classify embryos according to their “morphological similarity to
normal zygotic embryos” (id. at 27: 29-30) and germination rate (id. at
30: 5-7).
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 portions of embryos rather than complete embryos.
As shown in the application’s Figure 1, the portions of a plant embryo
include the cotyledon, hypocotyl, and radical. Some of the morphological
properties commonly used to sort embryos are those of the embryo organs
(e.g., cotyledon development; Spec. 2: 8). The Specification provides a
working example of the claimed method in which the observed features used
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