Appeal No. 2006-3250 Page 8
Application No. 10/468,562
coli and B. subtilis with respect to D-pantothenic acid synthesis, the skilled
artisan would have expected to have produced at least 2 g/L. The Examiner
provides no evidentiary basis to support this assertion. 5
We recognize the Examiner’s assertion (Answer, page 4) that since
Baigori teaches the genes involved in the biosynthetic pathway of D-pantothenic
acid, a person of ordinary skill in the art would have appreciated that “one or
more of these genes could have been manipulated, if desired, to be expressed at
an increased level to increase the production of D-pantothenic acid.” We agree
that a person of ordinary skill in the art would have appreciated that the genes
involved in biosynthesis of D-pantothenic acid could have been manipulated.
In this regard, we recognize that Hikichi discloses (column 2, line 66 – column 3,
line 3), a method for the production of D-pantothenic acid “wherein said microbe
is a microbe transformed with a plasmid DNA carrying the region of a gene
involved in biosynthesis of pantothenic acid . . . or a part of the region.” Stated
differently, Hikichi teaches the use of a bacteria wherein the biosynthetic pathway
of pantothenic acid is deregulated by introducing a varying number of copies of
plasmids. Cf. Appellants’ specification, bridging paragraph, pages 7-8.
5 As the Examiner recognizes (Answer, page 12), Hikichi “did not measure the amount of
pantothenic acid produced by their bacteria in a medium containing no β-alanine . . . .” Therefore
it is unclear from this record why a person of ordinary skill in the art would have expected to
produce at least 2 g/l of D-pantothenic acid by culturing B. subtilis in a medium lacking β-alanine
as the Examiner suggests. While the Examiner asserts that Hikichi did measure the amount of
pantoic acid produced by bacteria in a medium containing no β-alanine, the Examiner provides
no evidence to suggest that there is a relevant (e.g., 1:1) relationship between the amount of
pantoic acid and the amount of D-pantothenic acid produced by the bacteria in the absence of a
culture medium supplemented with β-alanine. Contrary to the Examiner’s intimation, the
evidence on this record does suggest that to produce D-pantothenic acid the bacteria must be
fermented in a culture medium containing β-alanine. See Hikichi, column 3, lines 58-61, and
examples 3 and 4, columns 13-14; and Binder, column 8, lines 32-34.
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