Appeal No. 95-0083
Application 07/711,556
conclusion of obviousness-type double patenting of method claims 43, 45 through 49
and 52, requiring that the polypeptide of interest not only be expressed in, but also be
secreted by, the host cell.
Claims 54 and 56 through 58, however, stand on different footing. These claims
are drawn to a method for obtaining a polypeptide of interest by growing a transformed
Kluyveromyces cell, whereby DNA encoding a polypeptide heterologous to the cell is
expressed and the polypeptide is obtained. These claims do not require that the
polypeptide of interest be secreted by the host cell. The transformed Kluyveromyces
cell recited in claim 1 of U.S. Patent No. 4,859,596 is described in essentially the same
terms in claim 54 on appeal.
Respecting claims 54 and 56 through 58, we agree that it would have been
obvious to a person having ordinary skill to grow the transformed Kluyveromyces cell
recited in claims 1 and 6 through 12 of the '596 patent to achieve expression of the
recombinantly introduced gene. As stated by the examiner, "Such a procedure is
standard in the art, is in fact the reason for introducing the genes into the host cell, and
would be well within the knowledge and skill of the ordinary practitioner" (Examiner's
Answer, page 3, lines 6 through 8). Claim 58 depends from claim 54 and requires that
the polypeptide is human serum albumin. We agree with the examiner that the choice
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