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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