Appeal No. 94-2006
Application 07/586,317
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of claims 49,
51 through 59, 69 through 77, and 79 through 83. Subsequent thereto, claims 74, 76, 78
and 81 through 83 were canceled. The examiner allowed claim 79 at page
1 of the examiner's answer. The examiner also indicated at page 2 of the examiner
answer that claim 72 is free of rejection and would be allowed if rewritten in independent
form. As a result, claims 49, 51 through 59, 69 through 71, 73, 75, 77, and 80 remain for
our consideration on appeal. Claim 49 is illustrative of the subject matter on appeal and
reads as follows:
49. A chimeric gene functional in a plant cell, which chimeric gene comprises:
(a) at a position 5' to coding region (c), a plant-expressible promoter sequence;
(b) at a position 3' to coding region (c), a terminator signal sequence; and
(c) a coding region of an aphIV gene, which coding region: (1) encodes a functional
hygromycin phosphotransferase enzyme or functional portion thereof; and (ii) is positioned
between such plant-expressible promoter sequence (a) and such terminator signal
sequence (b) so as to be expressible,
which expression of such coding region in a plant cell confers resistance to hygromycin B
on such plant cell and wherein such resistance to hygromycin B is capable of providing a
basis for selection of such plant cell.
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