Appeal No. 93-2460
Application No. 07/590,647
gene, which has proline replaced by serine at amino acid 101 of
the enzyme.” Comai, col. 3, lines 33-35. Comai also discloses
that the DNA sequence which encodes the glyphosate-resistant
EPSPS enzyme can be used to transform a “wide variety of plants,
both monocotyledon and dicotyledon.” Comai, col. 7, lines 3-5.
The transformed plants are resistant to herbicides which contain
glyphosate.
Fillatti discloses a co-cultivation method for transforming
tomato plants with a mutant aroA gene which confers resistance to
glyphosate. Fillatti does not disclose the location, or types,
of mutations in the aroA gene which are responsible for
glyphosate tolerance but, instead, footnotes Comai as the source
of the DNA sequence. Fillatti, p. 729, col. 2, lines 15-17 and
endnote 6.
Fitzgibbon discloses the isolation of a DNA sequence derived
from Pseudomonas sp. strain PG2982 which encodes an enzyme
capable of conferring resistance to EPSPS (glyphosate). Since
the isolated DNA sequence has (i) less than 40% homology with the
aroA genes of E. coli and S. typhimurium, and (ii) the
corresponding amino acid deduced from said DNA sequence has “no
significant similarity to amino acid sequences of known
proteins”, Fitzgibbon acknowledges that the sequence does not
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