Ex parte SCHUMACHER et al. - Page 5

               Appeal No. 1996-1093                                                                                              
               Application No. 07/300,357                                                                                        
               initiation point of translation of an mgl operon,” and expression vectors containing this nucleic acid            

               molecule.  Muller provides a partial restriction map of the S. typhimurium mgl operon, and                        

               demonstrates that various mgl-lacZ fusion constructs can be expressed.  However, the Muller reference             

               does not characterize the S. typhimurium mgl promoter/operator region, nor does it describe a fusion              

               construct that lacks sequences coding for mature mglB protein.  At best, Muller teaches, at page 40,              

               “[a]ccordingly, the beginning of the mgl operon was located within 0.7 kb between the left EcoRI site             

               and the fusion joint of the earliest mglB-lacZ fusion (fusion 506).”  To overcome this deficiency, the            

               examiner states that “[d]elineating the precise nucleotide sequence for the mglB regions utilized by              

               Muller would have been obvious in view of the sequencing of the mglB initiation region and gene                   

               (including delineation of the signal sequence) as taught by Scripture.”  See, Examiner’s Answer, page 4.          

                      It appears that the examiner has taken the position that since Scripture sequences a portion of            

               the E. coli mglB gene region it would have been obvious to sequence Muller’s S. typhimurium mgl                   

               operon, to determine first, the location, and then, the sequence of the                                           

               promoter/operator region of S. typhimurium.  Scripture, however, is silent regarding the                          

               promoter/operator region of the E.coli mgl gene region.  At page 10854, Scripture states, “[b]etween 5            

               and 9 nucleotides preceding the initiating ATG codon one finds a characteristic ribosome-binding site             

               (Shine and Dalgarno, 1974).  Initiation of transcription would probably occur in the AT-rich region 30            


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