
    Donald F. JONES, Paul C. Mangelsdorf and Research Corporation, Plaintiffs, v. Robert C. WATSON, Commissioner of Patents, Defendant.
    Civ. A. No. 220-56.
    United States District Court District of Columbia.
    Nov. 14, 1957.
    Harold T. Stowell, Washington, D. C., for plaintiffs.
    Joseph Schimmel, U. S. Patent Office, Washington, D. C., for defendant.
   HOLTZOFF, District Judge.

This is an action against the Commissioner of Patents to secure an adjudication that the plaintiff is entitled to a patent on an application which has been rejected by the defendant.

The alleged invention relates to the art of producing hybrid seed corn, or, as it is called in the opinion of the Board of Appeals of the Patent Office, the art of plant hybridization. A patent is sought on process or method claims relating to the production of hybrid corn.

It is necessary in the production of hybrid corn to use male-sterile corn plants in order to eliminate any pollen from plants that are considered undesirable for the production of the hybrid. It has been the practice previous to the plaintiffs’ invention to accomplish this object by the manual process of removing the tassels from the corn plants, the process being known in the trade as de-tasseling. Obviously this process is laborious, slow, and expensive. The plaintiffs’ invention consists in .'abandoning the process of detasseling, and substituting plants that had been originally grown as male-sterile plants, in order that it would not be necessary to go through the manual process of emasculating them. No doubt the plaintiffs have made a contribution.

The Patent Office, however, rejected the application on the ground that this process has been known and used in connection with the production of hybrid onions. The opinion of the Board of Appeals of the Patent Office states that:

“ * * * the interplanting of male-sterile and male-fertile plants to avoid the necessity of emasculation has long been known.”

The Patent Office cites a publication that describes the use of male-sterile plants in connection with the production of hybrid onions, the publication being a pamphlet by Henry A. Jones and Alfred E. Clarke, entitled “Inheritance of Male Sterility in the Onion” and the “Production of Hybrid Seed.” In this pamphlet it is stated that one of the steps is “To make crosses between the male-sterile line and other selected lines to determine which combination produces the best commercial hybrid.”

The Board of Appeals of the Patent Office held that in view of this background, the application of this process to corn is but the expected skill in the art .and is not the product of the inventive faculty. The Court sees no reason for differing from the Board of Appeals of -the Patent Office. In fact, it would reach the same result independently.

In view of these considerations, the ■Court will render judgment for defendant. Counsel will submit proposed findings of fact and conclusions of law.  