Appeal 1996-2010
Application 07/941,650
particular B. thuringiensis strain” (Ans., p. 5). The
examiner also finds that Sick and Soares describe DNA
sequences which encode Bt toxins which are active against
coleopteran insects and are the same or substantially the same
as DNA selected from the group consisting of appellants’ DNA
SEQ ID NO. 3, SEQ ID NO. 5, and fragments of those sequences
(Ans., p. 4, first full para.).
Based on no more than the above findings, the examiner
leaped to the conclusion that “one of ordinary skill in the
art would have had a reasonable expectation that the strains
recited in the rejected claims would be effective against
lepidopteran pests in addition to coleopteran pests” (Ans., p.
5). While the examiner acknowledged Dr. Gaertner’s testimony
that dual activity is rare amongst B. thuringiensis toxins
(Ans., p. 5), the examiner critically erred when applying a
“not wholly unexpected”
standard for obviousness and not the “reasonable likelihood of
success” standard which has been consistently applied. In re
Dow Chem. Co., supra.
We find no basis in the cited prior art for persons
having ordinary skill in the art to reasonably expect that Bt
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