Ex parte PAVLAKIS et al. - Page 10

              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                          
              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                       


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