Appeal No. 1996-3797
Application No. 08/070,162
In considering the issues raised by this appeal, it is unclear to us whether the
examiner has fully appreciated the significance of the disclosure provided by Rothman as
it relates, at least, to claim 1. As we read Rothman, this reference describes efforts (page
5553, paragraph bridging columns 1 and 2):
[t]o determine whether sequences that include the normal Ig
promoter are sufficient for LPS/IL-4 inducibility, a 1.1 kb
genomic PstI fragment, . . . was cloned 5' to the CAT reporter
gene in a plasmid with not other eukaryotic promoter (Fig. 2).
This construct was stably transfected into the 18.81A20 A-
MuLV-transformed pre-B-cell line. Transfectants contained
CAT activity only slightly higher than that of untransfected
controls, and culture with IL-4 alone or LPS alone did not affect
this level of CAT expression (Fig.2, lanes 1, 2, and 4). In
contrast, culture of the transfectants in the simultaneous
presence of LPS and IL-4 led to a progressive and substantial
increase in CAT
. . . activity following LPS/IL-4 treatment . . . . (Emphasis added)
While this portion of Rothman reasonably describes the stable transformation of a cell with
a reporter gene operatively linked to an IL-4 responsive element, the description indicates
that the expression of the reporter gene is induced only by the presence of both LPS and
IL-4. (Rothman, page 5553, column 2, first full sentence). It does not appear from the
record before us that the examiner has determined whether claim 1 can reasonably be
read to include inducement of expression of the reporter gene, in a transformed cell, by
more than just IL-4 or should be read to be limited to only IL-4 and thus exclude the
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