Appeal No. 2006-3084 Page 5
Application No. 10/673,860
“[w]hile deposit in a public depository most often has pertained to satisfaction of
the enablement requirement, we have concluded that reference in the
specification to a deposit may also satisfy the written description requirement
with respect to a claimed material.”
As discussed above, the examiner agrees that appellants’ specification
provides adequate written descriptive support for a method utilizing the deposited
Corynebacterium glutamicum AJ12036 (FERM BP-734) bacterium. The only
issue is whether appellants’ specification provides adequate written descriptive
support for mutants of this bacterium which retain the ability to secrete a
heterologous protein at least 2-fold higher than the wild type Corynebacterium
glutamicum ATCC13869 having said genetic expression construct. In our
opinion, appellants’ specification provides adequate written descriptive support
for these mutants.
As appellants explain (Brief, page 10), the phrase “mutant thereof” refers
to a mutant of A12036 and as required by the claimed invention, this mutant must
secrete a heterologous protein at least 2-fold higher than the wild type
Corynebacterium glutamicum ATCC13869 having said genetic expression
construct. Further, as appellants explain (Reply Brief, page 3), only those
mutations “which do not disrupt the ability of the cell to secrete the heterologous
protein 2-fold . . . [higher] than ATCC13869, are encompassed within the scope
of the claims.” Stated differently, appellants’ claimed invention is directed to the
use of Corynebacterium glutamicum AJ12036 (FERM BP-734) bacterium which
has the ability to secrete heterologous protein at least 2-fold higher than
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