Appeal No. 95-1569
Application 07/865,169
Bevan et al. (Bevan), "Tissue- and Cell-Specific Activity of a Phenylalanine Ammonia-
Lyase Promoter in Transgenic Plants," The EMBO Journal, Vol. 8, No. 7, pp. 1899-1906
(1989)
Lawson et al. (Lawson), "Engineering Resistance to Mixed Virus Infection in a Commercial
Potato Cultivar: Resistance to Potato Virus X and Potato Virus Y in Transgenic Russet
Burbank," Bio/Technology, vol. 8, pp. 127-34 (1990)
Lodge et al. (Lodge), "Characterization and Cloning of the Pokeweed Antiviral Protein,"
Journal of Cellular Biochemistry, Supplement Vol. 14E, p. 304 (1990)
Claims 1, 2, 4, 6 through 10, 12, and 14 through 20 stand rejected under
35 U.S.C. § 103. As evidence of obviousness, the examiner relies upon Lawson, Lodge,
and Ready. Claims 3, 5, 11 and 13 stand rejected under 35 U.S.C. § 103. As evidence of
obviousness, the examiner relies upon the three aforementioned references as well as
Stockhaus, Twell, and Bevan. We reverse.2
Discussion
All of the claims on appeal require the presence of a gene which will cause the
"expression of a pokeweed antiviral protein." The DNA sequence and coding SEQ ID
NO:2 set forth in claim 16 on appeal is a specific example of such a gene.
It is the initial burden of the patent examiner to establish that claims presented in an
application for patent are unpatentable. In re Oetiker, 977 F.2d 1443, 1446,
2A separate rejection of claims 3, 5, 8, 11, and 13 under 35 U.S.C. § 112, first
paragraph, was subsequently withdrawn by the examiner. See the Office communication
issued December 8, 1998 (Paper No. 10).
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