Appeal No. 1996-0449
Application 08/009,423
ordinary skill in this art to modify the method of Neill by substituting E. coli for the disclosed
S. cerevisiae, transforming either organism with an additional extrachromosomal
expression vector which includes a DNA which codes for a tRNA which recognizes both
codons AGA and AGG and contains UCU, and treating the transformed host cells under
conditions favoring an increase in expression of the DNA which codes for said tRNA as
claimed.
George, Huala and Tabor, additionally relied on in the second rejection under
35 U.S.C. § 103, do not provide that which is missing from the combination of references
discussed above.
Where, as here, the examiner fails to establish a prima facie case, the rejection is
improper and will be overturned. In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598
(Fed. Cir.1988). Therefore, the rejections of claims 83-92 under 35 U.S.C. § 103 are
reversed. Having determined that the examiner has failed to establish a prima facie case
of unpatentability, we have not found it necessary to consider the declaration evidence
provided by appellants.
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