Appeal No. 94-2232
Application 07/888,367
presence of the hevein peptide sequence encoded by the RNA”
(Claim 8). In our view, the cDNA utilized in the methods of
the presently appealed claims differs in scope from HEV1. The
questions to be answered for both sets of claims are (1)
whether the scope of the cDNA employed in the methods of (a)
Claims 7 and 9(7) and (b) Claims 8, 10(8) and 11(8) are so
indefinite as to prevent this panel from comparing the claimed
subject matter to the prior art teaching and from rendering a
decision as to their patentability under 35 U.S.C. § 103, and
(2) whether the ratio-nale which supports our holding with
regard to the patentability of Claims 3 and 4 in Appeal No.
94-2156 is equally applicable to resolve the patentability of
the subject matter here claimed.
It is evident to this panel that the cDNA utilized in the
method of Claims 7 and 9(7) here on appeal is sufficiently
defined to allow this panel to compare cDNA which is “derived
from E. coli ATCC 68363, and has an open reading frame of 204
amino acids which detects the presence of the hevein peptide
sequence encoded by the RNA” to cDNA which persons having
ordinary skill in the art, considering the combined teachings
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