Appeal No. 1999-1351
Application 08/471,884
THE ISSUE
The sole issue on appeal is whether the examiner erred in rejecting claim 31
under 35 U.S.C. § 103 as unpatentable over the combined disclosures of Goddard,
Kataoka, Lee, and Chang.
DELIBERATIONS
Our deliberations in this matter have included evaluation and review of the
following materials:
(1) the instant specification, including Figures 1 through 8 and claim 31 on
appeal;
(2) applicants’ Appeal Brief (Paper No. 12) and the Reply Brief (Paper No. 17);
(3) the Examiner’s Answer (Paper No. 13);
(4) the above-cited prior art references; and
(5) US Patent No. 6,080,540 issued June 27, 2000 to Wigler et al.
On consideration of the record, including the above-listed materials, we reverse
the examiner’s rejection under 35 U.S.C. § 103.
DISCUSSION
The pivotal reference in this case is Chang. Applicants argue, and the examiner
does not deny, that the E. coli strain disclosed by Chang expresses bacterial
dihydrofolate reductase (DHFR). See Chang, page 617, second paragraph. That is
why Chang carries out the assay described at length in the Chang reference. The
assay is needed to distinguish between bacterial DHFR and cloned mammalian DHFR.
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