Appeal No. 94-3676
Application 07/949,327
teaches “the genomic cloning of human IFN genes” (Examiner’s
Answer (Ans.), p. 3). The examiner concludes (Ans., p. 3):
It would have been obvious for one of ordinary skill in
the art to clone IFN genes from any non-human species
since the non-human interferons were known (Yabrov) to
be present in specific tissues and cells of animals, and
the cloning methods using the known human DNA sequence to
probe any mammalian library and recover an IFN species
were known. Goeddel et al. uses such a procedure for
other human IFN species and reports eight distinct
species.
Nagata and Ptashne are cited as evidence that processes
for isolating, purifying, cloning and expressing human IFN and
various mammalian genes in a bacterial host were well-known in
the art at the time appellants made their invention. Thus,
the examiner finds that it would have been within the ordinary
skill of the artisan to employ recognized techniques for
isolating, purifying, cloning and expressing any mammalian IFN
gene in a bacterial host in view of Goeddel’s teaching of the
structure of human leukocyte interferon and Yabrov’s
suggestion of some structural homology between heterologous
mammalian interferons (Ans., p. 4).
Appellants argue that (1) the examiner’s holding of
unpatentability of the subject matter claimed herein under
35 U.S.C. § 103 is inconsistent with the precedent set in
Amgen, Inc. v. Chugai Pharmaceuticals Co., Ltd., 927 F.2d
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