Appeal No. 95-4520
Application 08/038,761
Fromm, Michael E., et al. (Fromm), “Inheritance an d Expression of Chimeric Genes
In The Progeny Of Transgenic Maize Plants,” 8 Bio/Technology, 833-839 (Sept. 1990)
Kusui, Kaoru et al. (Kusui), “cDNA Cloning and Expression of Bauhinia purpurea Lectin,”
109 J. Biochem., 899-903 (1991).
Fischhoff, David A., et al. (Fischhoff), “Insect Tolerant Transgenic Tomato Plants,”
5 Bio/Technology, 807-813.
The claims stand rejected as follows:
1. Claims 1 and 8 under 35 U.S.C. § 103 as unpatentable over Kusui taken with
Kunkel and Pratt,
2. Claims 2-4 and 18-20 under 35 U.S.C. § 103 as unpatentable over Pratt taken
with Kusui and Kunkel,
3. Claims 5, 7-9, 15 and 16 under 35 U.S.C. § 103 as unpatentable over Fischhoff
taken with Kusui and Kunkel, and,
4. Claims 6, 13, 14 and 17 under 35 U.S.C. § 103 as unpatentable over Fischhoff
taken with Kusui and Kunkel and Fromm. We reverse.
DISCUSSION
As explained at page 2, lines 5-21 of the specification:
The lectin from Bauhinia purpurea is a glycoprotein the cDNA-
derived amino acid sequence of which indicates a polypeptide chain
comprising 262 amino acids that include 7 lysine residues. See, e.g.,
“cDNA Cloning and Expression of Bauhinia purpurea Lectin.” Kusui et al., J.
Biochem. 109, 899-903 (1991). This lectin has been determined by Czapla
et al. To have larvicidal activity against European corn borer, as disclosed in
the copending, commonly assigned U.S. patent application “Larvicidal
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