Appeal No. 94-0224
Application 07/322,604
sequence is a heterologous promoter capable of promoting the expression in a plant of a
structural gene operably linked thereto. According to claim 45, the two DNA sequences
are to be “operably linked.”
Appellants do not dispute the examiner’s finding that Amy describes a DNA
sequence which encodes a polypeptide having the biological activity of 2,4-D
monooxygenase. Nor do appellants dispute the examiner’s finding that Comai describes
a promoter capable of promoting the expression in a plant of a structural gene. Nor does it
appear to be appellants’ position that one of ordinary skill in the art having possession of
these two DNA sequences would not be able to physically link the two sequences together.
Rather, appellants’ position on appeal appears to be that one of ordinary skill in the art
would not have reasonably expected that such a DNA construct would be capable of being
expressed in plant cells. See, e.g., page 5 of the Appeal Brief. In support of their position,
appellants rely upon a declaration filed under 37 CFR § 1.132 by co-appellant Dr.
Wolfgang R. Streber.
In his declaration, Dr. Streber takes the position that Comai would not have formed
a basis for one to reasonably expect that the recombinant gene of claim 45 could be
expressed in plants. Dr. Streber bases his opinion upon the fact that Comai only inserted
an additional copy of a gene which was already present in a plant where the present
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