Appeal No. 1996-2009
Application No. 07/982,193
Brief, p. 6.
Another difficulty with examiner's reasoning is
that, even if we agreed that the above-mentioned
Lebkowski passage expressly suggests deleting the entire
sequence between the ITRs, the prior art would not have
suggested to those of ordinary skill in the art to insert
a promoter other than p40. Neither Lebkowski nor Izban
suggest replacing p40 with another promoter in an AAV
expression vector. The examiner admits that none of
Lebkowski's vectors are without p40 (Examiner's Answer,
p. 7), and Lebkowski provides no reason, and the examiner
does not point to any, for substituting a different
promoter for p40. Similarly, there is no suggestion in
Izban that would have led one to select Izban's murine
albumin promoter as an alternative promoter in the AAV
expression vector. Aside from inserting exogenous DNA,
Lebkowski does not provide any direction as to which or
what type of promoter could be successfully inserted.
Given that Izban does not suggest inserting its promoter
in an AAV expression vector, the only reason for doing so
is provided by appellant's disclosure. Therein appellant
describes the advantages and problems associated with
AAV-based vectors with general promoters for gene therapy
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