Appeal No. 95-4700
Application 07/837,668
We affirm the prior art rejections and reverse the rejection under 35 U.S.C.
§ 112, second paragraph.
DISCUSSION
1. Prior art rejections
In reviewing the “Replacement Brief on Appeal” (Paper No. 37, August 26, 1994)
we note that appellants do not substantively argue the merits of the rejections under
35 U.S.C. § 103. Rather, appellants rely upon the arguments presented in regard to the
anticipation rejection premised upon Asaka in support of the patentability of the claims
rejected under 35 U.S.C. § 103. See page 4 of this paper. Furthermore, in regard to the
rejection under 35 U.S.C. § 102(e), appellants have stated that “the claims can be grouped
together.” See page 3 of this paper. Accordingly, the dispositive question in regard to the
prior art rejections pending in this appeal is whether Asaka describes a recombinant gene
as required by claim 1 on appeal?
We answer this question in the affirmative.
Claim 1 is directed to a recombinant gene which comprises a nucleotide sequence
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which encodes a flagellin fusion protein. In order to encode a fusion protein, the claimed
recombinant gene requires two separate nucleotide sequences. The first is a “flagellin
sequence containing a first epitope of a flagellin structural gene.” The second is one which
As explained on pages 7-11 of the supporting specification, flagellin is a structural protein in bacterial3
flagella.
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