Appeal No. 95-2613
Application 07/876,794
human gonadotropins, LH and FSH, in GH cells. Since the
3
issue of the obviousness of the claimed method and cell
cultures has only focused on the obviousness of the use of GH3
as host cells, when faced with the appellant’s evidence of
unexpected results, at a minimum, the examiner should have
allowed the claims specifically directed to this cell line;
i.e., claims 3 and 9.
As to the examiner’s argument that “the showing that a
single possible embodiment, the use of CHO cells as a
recombinant host, does not produce a particular result is not
sufficient to establish that it is an [sic] the production of
that particular result using GH cells is unexpected,” it is
3
not clear to us what more she would have the appellant do.
The only and, therefore, closest prior art of record shows the
recombinant expression of DNA sequences encoding human
gonadotropins in CHO cells. There is no burden on the
appellant to establish that the claimed method results in an
unexpected result with respect to cell lines not raised as an
issue in the rejection.
Accordingly, since the examiner has not provided any
reasons why the genus of cells having regulated secretory
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