Appeal No. 1996-3797
Application No. 08/070,162
acknowledges that Suter does not teach "the making of a stably transformed cell
expressing this vector and making a cell line therefrom." (Id.)
The examiner cites both Sambrook and Takai as teaching the use of the DEAE-
dextran method for stable transformation of cells. (Answer, paragraph bridging pages 4-5).
The examiner concludes that (Answer, page 5):
[o]ne a of ordinary skill in the art would have been motivated to
make the Jijoye cells according to Suter et al. and maintain
these cells to determine and acquire stable transformants of
the cells for the study of IL-4 and IgE regulation and use as a
pharmaceutical screening assay for agents useful in the
treatment of allergies because both Sambrook et al. and Takai
et al. teach that DEAE-dextran method of transfection can
result in stably transformed cells.
Appellants, in rebuttal, argue that (Brief, page 11):
[t]here is no suggestion or even an inference in Suter, et al. that
stable transformants should be prepared. Furthermore, there
is nothing to suggest that studies alluded to cannot be carried
out using transiently transfected cells as described by Suter, et
al. Similarly, there is nothing in the secondary references,
Sambrook, et al., and Takai, et al., to suggest or motivate the
ordinary skilled artisan to combine and modify [these]
references.
On balance, we agree with appellants that the rejection, based on the combination
of Suter with Sambrook and Takai, is not sustainable. While we do not doubt that the
methodology of Sambrook and Takai could have been used in combination with the
techniques described by Suter to arrive at a stably transformed cell which could have been
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