Appeal No. 95-2613
Application 07/876,794
the examiner merely states, without challenging the
specification results with respect to FSH, that the
appellant’s conclusion that GH cells correctly process FSH is
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unsupported by fact or evidence. Answer, p. 7, last para.
She does not challenge the appellant’s data set forth in the
declaration or the specification, but instead she merely
states that the “appellants [sic, appellant’s] allegation that
‘it is surprising to find that these (GH ) cells correctly
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process FSH’ remains unsupported by fact or evidence.”
Answer, p. 7, last para. Thus, we find that the examiner, in
effect, is giving no weight to the evidence and is maintaining
her original position with her statement that “[i]t remains
that GH had been demonstrated to be useful as host cells for
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recombinant expression of proteins, and that one of ordinary
skill in the art would have expected such cells to be useful
for the production of FSH for the reasons of record above.”
[Emphasis added.] Id. Absent factual reasons as to the
shortcomings of the declaration and specification data, we
must assume that the data demonstrate that an unexpected
result was obtained for the claimed method of producing the
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