Appeal No. 95-4700
Application 07/837,668
As can be seen, Asaka describes a recombinant gene formed by inserting DNA
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coding for a foreign peptide into a flagellin gene. Use of the entire hag gene as taught by
Asaka will necessarily result in the recombinant gene containing “a first epitope of a
flagellin structural gene.” The foreign DNA inserted within the flagellin gene in Asaka may
be a synthesized polynucleotide encoding hepatitis B virus (HBV) surface antigen. See
column 29, line 51-column 30, line 26 of Asaka. As stated at column 30, lines 22-26:
These strains excrete flagellin fused with peptide
LeuValLeuLeuAspTyrGlnGlyMetLeuProValGysProLeuGly
encoded by the synthesized DNA (Hbs-Ag-IV) which is
inserted in the plasmid and form flagella.
A recombinant gene according to Asaka which comprises a complete hag gene
into which has been inserted a synthesized polynucleotide sequence encoding HBV
surface antigen is within the scope of claim 1 on appeal. On this basis, we find no error in
the examiner's determination that Asaka anticipates claim 1 on appeal.
We have carefully considered the argument presented by appellants on appeal on
pages 3-4 of the Replacement Brief on Appeal in regard to the anticipation rejection.
However, it is unclear what point appellants are trying to make. Asaka clearly and
unambiguously describes a recombinant gene which is constructed from a complete
flagellin gene into which foreign DNA has been inserted. It appears to be beyond
argument that such a recombinant gene would contain “a first epitope of a flagellin
In similar fashion, the present invention can use linkers to insert foreign DNA into a flagellin gene. See4
page 33, lines 2-18, of the supporting specification.
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Last modified: November 3, 2007