Appeal No. 2006-3250 Page 7
Application No. 10/468,562
bacteria used by Hikichi, also produces its own β-alanine from aspartic acid.
Baigori, page 4241, figure 1. Further, while E. coli produces its own β-alanine,
Hikichi requires that the culture medium be supplemented with β-alanine in order
to produce large quantities of D-pantothenic acid. Hikichi, column 2, lines 20-24,
and column 3, lines 58-61.
Nevertheless, the Examiner reasons (Answer, page 4), since both E. coli
and Bacillus subtilis produce D-pantothenic acid, a person of ordinary skill in the
art at the time the invention was made would have found it prima facie obvious to
substitute Bacillus subtilis, for E. coli in the method taught by Hikichi. According
to the Examiner (id.), a person of ordinary skill in the art would have been
motivated to make this substitution to avoid adding β-alanine to the culture
medium. We disagree. Even if a person of ordinary skill in the art would have
been motivated to modify Hikichi’s method by substituting Bacillus subtilis for E.
coli, there is no suggestion in either reference that one would obtain at least 2 g/l
of salts of D-pantothenic acid in the absence of additional β-alanine added to the
fermentation media. The Examiner admits as much by recognizing (Answer,
page 5), that “one of ordinary skill in the art would not have known in advance
exactly how much pantothenic acid would have been produced in a recombinant
fermentation with B. subtilis as a host cell in which no β-alanine is added.” While
it is true that both organisms produce their own β-alanine, as discussed above,
Hikichi requires that the culture medium be supplemented with β-alanine in order
to produce large quantities of D-pantothenic acid. Accordingly, we disagree with
the Examiner’s assertion (Answer, page 5) that due to the similarities between E.
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