Appeal No. 94-2279
Application 07/687,819
through 15 also stand rejected under 35 U.S.C. § 103 as unpatentable over Maina in view
of Murtif and further in view of Berger and Kohanski. Claims 16 through 22 stand rejected
under 35 U.S.C. § 103 as unpatentable over Maina in view of Murtif and further in view of
Sambrook. We reverse.
DISCUSSION
Claim 1 is directed to at least one polypeptide of interest which is fused to at least
one biotinylated avidin binding polypeptide. Importantly, fusion takes place at the C-
terminus of the biotinylated avidin binding polypeptide.
The key to each of the three rejections pending against the claims on appeal is the
disclosure of Murtif. Murtif reports the results obtained from studies of how mutagenesis
affects the carboxy terminus of the biotinyl subunit of transcarboxylase. Murtif determined
that the carboxy terminus of the biotinyl subunit of transcarboxylase is very critical in
biotination. For the reasons set forth beginning at page 8, line 4, of the Appeal Brief and
continuing through the second line of page 10 of the document, we agree with appellants
that Murtif teaches away from the claimed invention. As further evidence that at the time of
the present invention, Murtif would have been viewed as teaching away from the claimed
subject matter, we make reference to Cronan. Cronan describes fused polypeptides
containing a polypeptide of interest fused to at least one biotinylated avidin binding
polypeptide. However, the fusion in Cronan takes place at the N-terminus of the
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