Appeal No. 93-2460
Application No. 07/590,647
Since the appellants have failed to meet their burden of
establishing that the specification enables the method of claim
46, and they have offered no rebuttal evidence with respect to
claims 22, 30, 38-41, and 47, we are constrained to affirm the
rejection.
Rejection IV is affirmed.
Rejection V
The examiner argues that the specification fails to enable
claim 46 “because expression of a foreign gene in a plant,
especially when the gene is of procaryotic origin, is
unpredictable.” The examiner relies on the teachings of DeGreve
to support her position. We disagree.
Since claim 46 contains the same amino acid sequence
limitations as claim 1, we find for the reasons discussed for
Rejection III above, that it is limited to EPSPS sequences which
encode the consensus amino acid sequence set forth in Figure 1.
As to the examiner’s argument that the expression of the
claimed EPSP variants in plants is unpredictable, we find her
reliance on the teachings of DeGreve to be misplaced. DeGreve
describes problems which are specific to the expression of a
different protein (Bt2 toxin). These problems are due to the
1919
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