Appeal No. 94-3676
Application 07/949,327
While appellants do not contest the examiner’s finding
that the prior art of record as a whole shows varying levels
of heterologous activity among bovine, porcine, human, rabbit,
monkey, equine, and canine (Ans., pp. 6-7, bridging para.),4
they argue that the examiner’s finding that “it would be
highly likely bovine and human [DNAs which encode interferon]
are significantly homologous in their primary structure (DNA
and amino acid sequences)” (Ans., p. 7, l. 9-10) is
speculative and contrary to the declaratory evidence of
record. We find that while the evidence to which the examiner
points does suggest some degree of homology between the
interferon amino acid and DNA sequences which likely would
provoke experimentation, we find that it is not sufficient to
have reasonably led persons having ordinary skill in the art
to expect success.
While Yabrov reports that bovine, rabbit and rat
interferons show “a high protective activity . . . for human
4 We note the examiner’s citation of other art. In re
Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970):
Where a reference is relied on to support a
rejection, whether or not in a “minor capacity,”
there would appear to be no excuse for not
positively including the reference in the
statement of the rejection.
- 8 -
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007