Appeal No. 1996-1093
Application No. 07/300,357
art.” In this instance, contrary to the examiner’s position, Scripture and Muller taken together, or
individually, would not suggest the claimed mgl promoter/operator region.
To emphasize his position, the examiner states at page 5 of the Examiner’s Answer, “[i]n fact,
the mglB gene sequence of E. coli from Scripture (see Figure 3 of Scripture or Figure 12 of the instant
application) and the S. typhimurium [sic] mglB gene sequence of the instant application as shown in
Figure 1 are identical (both at the nucleotide and amino acid level), and thus they are the same gene and
would have been expected to have the same biological activity.” We can not agree with the examiner’s
comparison of the two sequences. Upon comparison of Scripture, Figure 3, and Figure 1 of the instant
application, it is readily apparent that the sequences are different in both their nucleotide and amino
acid sequence. Initially, the signal sequence contains two amino acid differences: Amino Acid 15 is Leu
in S. typhimurium versus Met in E. coli; and amino acid 20 is His in S. typhimurium versus Ala in E.
coli. Similarly, while there are regions of identity between the E. coli and S. typhimurium nucleic acid
sequences there are large regions that differ in sequence. For example, compare appellants’ Figure 1,
sequence 633-704, with sequence 1-72 of Scripture, Figure 3. Furthermore, Muller, states at page 41,
that [i]n comparing our restriction analysis of the S. typhimurium mgl operon with the corresponding
analysis of the E. coli operon, no similarities could be observed. The difference in sequence and
restriction map between S. typhimurium and E. coli further detracts from the examiner’s position.
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