Appeal No. 94-3676
Application 07/949,327
1200, 18 USPQ 1016 (Fed. Cir. 1991), (2) the prior art cited
by the examiner does not establish a prima facie case of
unpatentability under
35 U.S.C. § 103 for the claimed subject matter, and (3) the
greater weight of all the evidence of record, including the
Declarations of Michael Samuel Neuberger and A. Neil Barclay
under 37 CFR § 1.132 and attached exhibits, favors
patentability. The examiner argues that unpatentability is
evident because
(a) all the means and methods for isolation, purification,
cloning and expression of DNA encoding non-human mammalian
interferons were available to persons having ordinary skill in
the art at the time appellants’ invention was made, (b) the
evidence as a whole provides more than a mere invitation to
try to identify and isolate DNA which encodes non-human
mammalian interferons using probes based on cDNA which encodes
human interferon, e.g., the examiner argues that Yabrov’s
teaching that bovine, rabbit, and rat interferons show
activity on human cells and other corroborative studies of
record (Ans., p. 5, l. 20, to p. 7, l. 7) reasonably would
have suggested to persons having ordinary skill in the art
that a high degree of homology exists between DNA which
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