Ex parte UYEDA et al. - Page 4

          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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