Appeal No. 94-3187
Application 07/939,556
(FPV) to infect L cells and chick embryo fibroblasts. FPV infection of L cells resulted in
low viral virus yields while the FPV infections of chick embryo fibroblasts resulted in
relatively high virus yields. In order to define the factors responsible for these disparate
results, Bosch compared the virus-specific RNA and protein synthesis of the two systems.
The examiner relies upon Bosch’s observation, set forth in the last full paragraph of page
467, that of the proteins analyzed in the chick embryo fibroblast and L cell cultures, the
synthesis of matrix protein was reduced in the L cell culture. The examiner has inferred
that the relatively higher production of matrix protein in the chick embryo fibroblast culture
was responsible for the relatively higher virus yields obtained in that system. From this
inference, the examiner concluded that one of ordinary skill in the art would have
understood at the time of the present invention, from a consideration of all four of the
applied references together, that a reassorted virus containing the RNA encoding matrix
protein of PR8 would have expectedly been able to grow in high yields in cell culture. We
disagree.
In our view, the narrow disclosure of Bosch does not support the sweeping
conclusion reached by the examiner. Bosch initially indicates that many influenza virus
infections of cells in culture do not result in the production of infectious virus. That teaching
in and of itself provides evidence that the area in which appellant is working has a high
degree of unpredictability. While infection of chick embryo fibroblasts resulted in relatively
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