Appeal No. 1995-2723
Application 07/858,747
As to Wisdom, appellants urge that (Principal Brief, page 9):
Wisdom et al. do not teach or suggest using multiple mutations of the
instability region to increase stability. Wisdom et al. is limited to the use of
either (1) a single mutation in the translation initiation codon from ATG to
ATC, which prevents translation of the mRNA or (2) the use of translation
inhibitors to reduce the effect of the INS present in the c-myc gene. This is
no hint that would lead one skilled in the art to known that multiple point
mutations would reduce the effect of INS. ... Furthermore, there would be no
motivation to use multiple point mutations to reduce the effect of the INS
once the use of single point mutation (which prevents translation) or the use
of translation inhibitors were shown to be effective.
We do not agree that Wisdom should be given such a limited reading. Wisdom
does disclose that a single point mutation in the coding region of the gene effects
translation and the stability of the resulting rRNA.
Appellants urge that:
[t]here are no teachings, explicit or implicit, in either Schwartz et al. or
Wisdom et al. which would lead one of ordinary skill in the art to combine
their teachings with Hatfield et al., to generate Applicants' invention.
We are not persuaded. As we have stated, both Schwartz and Wisdom had suggested
teach the use of mutagenesis of the INS region of a gene to study the effects of the mRNA
which result from the transcription of that gene. This the modification of nucleotide
sequence in the INS region of the gene is intended to modify or eliminate the instability or
inhibitory effect of that part of the resulting mRNA. Thus, whether one of ordinary skill in the
art chose to modify, through mutagenesis, the INS region of a gene using deletion mutation
or multiple point mutation in order to reduce the inhibitory or instability causing effect of this
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