Ex parte UYEDA et al. - Page 3




          Appeal 1996-2010                                                            
          Application 07/941,650                                                      


          stand or fall together (Br., p. 2, last full para.) with                    
          representative                                                              
          Claim 15 below.                                                             
                    15. A method for controlling lepidopteran insects                 
               which comprises administering to said insects or to the                
               environment of said insects a microorganism transformed                
               to express a Bacillus thuringiensis [(Bt)] toxin active                
               against lepidopteran pests encoded by DNA selected from                
               the group consisting of SEQ ID NO. 1, SEQ ID NO. 3, SEQ                
               ID NO. 5, and any fragments of those sequences sufficient              
               to encode a lepidopteran-active toxin.                                 





                                     Discussion                                       
               We have considered all the evidence and arguments of                   
          record, including the claims on appeal, the supporting                      
          specification, the prior art relied upon by the examiner, the               
          Declaration of Dr. Frank H. Gaertner dated April 27, 1993,                  
          Appellants’ Brief, and the Examiner’s Answer.  The PTO has the              
          burden under 35 U.S.C.                                                      
           103 to establish a prima facie case of obviousness.  In re                
          Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir.                   
          1988).  “The consistent criterion for determination of                      
          obviousness is whether the prior art would have suggested to                
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