Appeal No. 1995-2723
Application 07/858,747
region of the gene is merely a matter of choice where the choice is made from among
those techniques recognized by the prior art.
We similarly disagree with appellants' contention that Schwartz and Wisdom teach
away from the present invention in suggesting that protein interactions may be or are
responsible for the effects of the INS. While each of the references discuss the
involvement of other proteins in the process, a reasonable reading leads one to the
conclusion that it is the INS region of the gene which ultimately dictates whether these
proteins effect the stability of the mRNA or its ability to express the relevant protein.
Appellants have additionally addressed the subject matter of claim 6 arguing that
Wisdom and Schwartz do not teach a process where the multiple point mutations do not
change the amino acid sequence encoded by the mRNA. While Schwartz does not
explicitly describe a mutation which does not change the amino acid sequence encoded
by the mRNA, claim 6 reads on changes in a silent codon region as described by Hartfield
or a change in the 3' untranslated region as suggested by Schwartz. (Note page 152,
column 2, last paragraph). The result of either, would be a mutant which would not effect
the amino acid sequence encoded by the mRNA. Similarly, in urging the separate
patentability of claim 10, appellants content that Schwartz, at page 755, Col. 1, lines 18-23,
teaches the expression of gag protein which is Rev dependent while the specification
teaches expression in a Rev independent manner. However, the portion of the reference
gag
cited relates to the expression of the p17 protein where the gene has not been modified.
Schwartz indicates that the test was performed only to verify the hypothesis that the INS
10
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