Appeal No. 96-1027
Application 08/162,288
constructs whereas van der Krol and Hiatt, in contradistinction to the claims, use full length
constructs.
Finally, only Hiatt uses DNA constructs to modulate fruit-ripening enzyme expression
in plant cells. The parties have disagreed as to whether Jorgensen teaches DNA
constructs encoding proteins to inhibit ripening-enzymes. However, considering that
Jorgensen makes only a single mention of "ripening traits" as a trait, among many others,
that potentially could be subject to the Jorgensen expression-reducing method (column 3,
lines 53-57) and that the remaining disclosure is directed solely to affecting color changes
in the plant, we agree with appellants that Jorgensen would not suggest to one of ordinary
skill a more particular process by which a plant cell is transformed with a DNA construct
coding for only a part of a fruit riping enzyme. There is no dispute that van der Krol does
not teach or suggest modifying gene expression of fruit-ripening enzymes. Like
Jorgensen, the van der Krol method is directed to flavonoid genes.
Accordingly, each reference teaches a part of the claimed invention. The claimed
invention involves partial constructs and the modification of the expression of fruit-ripening
enzymes. These two limitations are taught by Jorgensen and Hiatt, respectively. However,
we fail to find any reason in the the references to modify Jorgensen's partial constructs to
modify expression of fruit ripening enzymes as taught by Hiatt. In fact, given that Jorgensen
employs sense constructs while Hiatt employs anti-sense constructs in practicing their
respective methods, and that there is no disclosure equating the use of antisense
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