Ex parte CACECI et al. - Page 10




          Appeal No. 94-3056                                                           
          Application 07/812,421                                                       


          been perceived in the state of the art that                                  
                    existed at the time the invention was made.                        
          [citations omitted]                                                          
               Thus, we hold that claims 32-37 define polypeptides which               
          would not have been obvious in view of the prior art cited by                
          the examiner.                                                                
               New Rejection under the provisions of 37 CFR  1.196(b)                 
               Claim 37 is rejected under 35 U.S.C.  112, second                      
          paragraph.                                                                   
               Claim 37 is indefinite in the recitation of “a protein                  
          expressed from” the specified plasmid.  In addition to the                   
          double fusion protein (P10:WF8R:$-gal) described at pages 21-                
          24 of the                                                                    
          specification, from which the antifreeze polypeptide WF8R (SEQ               
          ID NO:2 shown in Figure 4) can be extracted, plasmid pGX28L                  
          contains at least one other gene which encodes a protein.  The               
          commercially available starting plasmid pGEM3Z(+) contains a                 
          structural gene for a protein that is used in screening the                  
          transformed E. coli for positive clones, i.e. those bacteria                 
          which have taken up the desired plasmid.  This gene is                       
          referred to throughout Figures 9a-9c as “amp ”.  This gene isR                               
          present in pGX28L, ATCC deposit No. 68425, as is shown in the                
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