Appeal No. 1996-2639
Application No. 08/176,320
The sole issue remaining on appeal is whether the examiner erred in rejecting claims 6, 9-13,
22, 43 and 66-71 under 35 U.S.C. § 103 as unpatentable over McGeoch in view of Sambrook. We
reverse.
Appellants’ claimed invention is directed to isolated and purified nucleic acid sequences
encoding for a herpes simplex virus type 1 (HSV-1) protease.
OPINION
McGeoch discloses the DNA sequence of the long unique region (U ) in the genome of HSV-1
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strain 17 (abstract; Figs. 1-3), which included 57 identified open reading frames (page 1535).
Sambrook describes methods of expressing cloned genes in cultured mammalian cells. According to
the examiner, it would have been obvious to one of ordinary skill in the art to have cloned the U 26
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region described by McGeoch using the methods of Sambrook to further study and characterize the
function of this protein (answer, page 6). However, the examiner has failed to point out, and we do not
find, where McGeoch discloses or suggests that the U 26 region, or any other region of the disclosed
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HSV-1 U sequence for that matter, encodes a protease. See In re Kratz, 592 F.2d 1169, 1175, 201
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