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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