Appeal 1996-2010 Application 07/941,650 particular B. thuringiensis strain” (Ans., p. 5). The examiner also finds that Sick and Soares describe DNA sequences which encode Bt toxins which are active against coleopteran insects and are the same or substantially the same as DNA selected from the group consisting of appellants’ DNA SEQ ID NO. 3, SEQ ID NO. 5, and fragments of those sequences (Ans., p. 4, first full para.). Based on no more than the above findings, the examiner leaped to the conclusion that “one of ordinary skill in the art would have had a reasonable expectation that the strains recited in the rejected claims would be effective against lepidopteran pests in addition to coleopteran pests” (Ans., p. 5). While the examiner acknowledged Dr. Gaertner’s testimony that dual activity is rare amongst B. thuringiensis toxins (Ans., p. 5), the examiner critically erred when applying a “not wholly unexpected” standard for obviousness and not the “reasonable likelihood of success” standard which has been consistently applied. In re Dow Chem. Co., supra. We find no basis in the cited prior art for persons having ordinary skill in the art to reasonably expect that Bt - 5 -Page: Previous 1 2 3 4 5 6 7 NextLast modified: November 3, 2007