Appeal 1996-2010
Application 07/941,650
one of ordinary skill in the art that . . . [the claimed]
process should be carried out and would have a reasonable
likelihood of success, viewed in the light of the prior art.”
In re Dow Chem. Co.,
837 F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed Cir. 1988).
Payne describes novel Bt genes encoding toxins which are
active against lepidopteran insects. The examiner does not
allege that Payne’s novel Bt genes include appellants’ DNA SEQ
ID NO. 1, SEQ ID NO. 3, SEQ ID NO. 5, any fragments of those
sequences which encode lepidopteran-active toxins, or obvious
modifications thereof. Nor does the examiner argue that
appellants’ DNA sequences encode the same or substantially the
same toxins which Payne’s Bt genes encode. Rather, the
examiner relies (Ans., p. 5) on Payne’s introductory statement
that (Payne, col. 1, l. 8-15):
[t]he most widely used microbial
pesticides are derived from the
bacterium Bacillus thuringiensis. This
bacterial agent is used to control a
wide range of leaf-eating caterpillars
and beetles, as well as mosquitos.
The examiner reasonably finds, “Therefore, the reference
teaches that lepidopteran insects are potential targets of any
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