Appeal No. 1996-1916
Application 07/912,122
cassette of claim 2. Claims 1 through 3 stand rejected under 35 U.S.C. § 103 as
unpatentable over Lemischka.
Lemischka discloses DNA encoding Flk-2, a 992 amino acid “receptor protein
tyrosine kinase” with a ligand-binding extracellular domain, a transmembrane domain, and
an intracellular catalytic domain (column 3, lines 48-60). The reference also discloses a
form of Flk-2 lacking the transmembrane region (amino acids 545-564), the catalytic
domain (amino acids 565-992), and a portion of the extracellular domain (amino acids 1-
27); i.e., a form of Flk-2 corresponding to amino acids 28-544 of the 992 amino acid
receptor (column 3, lines 48-56 and column 6, lines 15-20). The presently claimed cDNA,
on the other hand, has a sequence identical to the Flk-2 receptor, but for “a 511 amino
acid deletion beginning with the amino acid 221 Val and ending with the 731 Gln, so that
the Lys at 220 is joined to the Ala at 732" (specification, pages 2 and 9).
The examiner argues that “there is no sequence with which the claimed DNA would
hybridize that would not also hybridize to the DNA as disclosed by Lemischka” and
concludes that “the claimed DNA is, with respect to its use as hybridization probe,
functionally equivalent to and therefore prima facie obvious over the DNA disclosed by
Lemischka” (Examiner’s Answer, page 6).
We find ourselves in agreement with appellant that “[t]his is not the standard for
obviousness” (Reply Brief, page 2). As argued by appellant, the claimed cDNA “has a
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