Ex parte SCHUMACHER et al. - Page 3




               Appeal No. 1996-1093                                                                                              
               Application No. 07/300,357                                                                                        
                      In the Examiner’s Answer (Paper No. 32, mailed October 3, 1994) the examiner withdrew all                  

               grounds of rejection as they appear in the Final Office Action, in view of a new ground of rejection.             

               Claims 11, 12, and 44-55 are rejected under 35 U.S.C.  103.  As evidence of obviousness, the                     

               examiner relies upon Muller, Scripture, Perron, Waye and Maniatis.  We reverse.                                   

                                                         DISCUSSION                                                              

                      In reaching our decision in this appeal, we have given careful consideration to the appellants’            

               specification and claims, and to the respective positions articulated by the appellants and the examiner.         

               We make reference to the Examiner’s Answer, and the Supplemental Examiner’s Answer (Paper No.                     

               37, mailed June 3, 1995) for the examiner’s reasoning in support of the rejection.  We further reference          

               appellants’ Brief (Paper No. 31, filed July 5, 1994), and appellants’  Reply Brief (Paper No. 33, filed           

               January 5, 1995) for the appellants’ arguments in favor of patentability.                                         

                      At pages 3-4 of the Examiner’s Answer, the examiner states that “Muller teaches an expression              

               vector containing the promoter/operator, initiation region, and signal sequence of the mglB gene from             

               Salmonella typhimurium.”  At page 4 of the Examiner’s Answer, the examiner states that “Scripture                 

               teaches the cloning and sequencing of the E.coli mglB gene and delineates the initiation region and signal        

               sequence.”  At page 4 of the Examiner’s Answer the examiner notes that “[t]he prior art does not                  

               explicitly teach the nucleotide sequence encoding the promoter/operator region of the mglB gene from              

               E. coli or S. typhimurium [sic, St.], and its insertion into an M13 vector containing a polylinker . . .          


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