Interference No. 103,613
recombinant HVT of claim 12 wherein the inserted foreign gene is a lac Z gene of E. coli
which encodes the beta galactosidase protein. A feature common to all of these claims is
that the foreign gene is inserted into a StuI restriction enzyme site within the US2 gene
(ORF4) of a naturally occurring HVT.
After a thorough evaluation of all the evidence of record in light of the opposing
arguments advanced by the parties in their briefs, we are convinced that Sondermeijer
established an evidentiary basis for a prima facie case of obviousness in its original
motion 4.
To elaborate we note, as pointed out in the Decision on Motions, that there is no
dispute that AU-A-67698/90 (the Australian counterpart of the involved Sondermeijer
patent) and 2,031,164 (the Canadian counterpart of the involved Sondermeijer patent)
constitute prior art, within the context of 35 U.S.C.
102(b), with respect to Cochran's involved claims. There is also no dispute that the
disclosures in these two prior art references are essentially identical to the disclosure
in the involved Sondermeijer patent.
We take special note of the following excerpts from the Australian reference which
we label I-IV:
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