Appeal No. 94-3676
Application 07/949,327
06/438,128. Accordingly, because there is no prior teaching
of an amino acid sequence for any known non-human mammalian
interferon in the cited references, there can be no suggestion
of the probable structure of DNA likely to encode non-human
mammalian interferon. Therefore, at best, persons having
ordinary skill in the art may have been able to successfully
probe for DNA which encodes non-human mammalian interferon
with human leukocyte interferon cDNA with enough
experimentation. Without providing guidance or direction, the
prior art merely invites such experimentation.
Unpatentability under 35 U.S.C. § 103 requires more
information.
The examiner has the initial burden to establish a prima
facie case of obviousness under 35 U.S.C. § 103. See In re
Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir.
1988):
The PTO has the burden under section 103 to establish a
prima facie case of obviousness. . . . It can satisfy
this
burden only by showing some objective teaching in the
prior
art or that knowledge generally available to one of
ordinary
skill in the art would lead that individual to combine
the
relevant teachings of the references.
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