Appeal No. 93-4005
Application 07/795,158
As noted above, the examiner found that Ashbya gossypii
is a yeast. Applicant seems to agree. But, the evidence we
have uncovered reveals that Ashbya gossypii is a filamentous
fungi.
The nature of Ashbya gossypii is critical to the
evaluation of the prior art cited by the examiner,
particularly Babayan. According to Babayan, autolysis of
yeasts is difficult. Specifically, Babayan indicates that
"[i]n the process of autolysis the cell wall in most yeasts
undergoes only certain structural modifications; however, its
completeness is retained ***." Babayan, page 132.
Applicant's claim 6, however, requires "complete enzymatic
breakdown of the cell wall and proteins ***." Accordingly, if
Ashbya gossypii was a yeast, it would be difficult to see how
the teachings of Babayan could apply to the claims before us.
The examiner's finding that Ashbya gossypii is a yeast is
clearly erroneous. Likewise erroneous, is applicant's
statements that Ashbya gossypii is a yeast. Applicant's
traverse of the examiner's rejection, like the rejection
itself, is bottomed on a faulty factual premise.
Accordingly, we reverse the examiner's rejection.
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Last modified: November 3, 2007