Appeal No. 1997-0878
Application 07/834,523
DISCUSSION
As stated by the examiner at page 3 of the Examiner's Answer, the method of claim
22 on appeal differs from that described from Baranoy by “adding an exogenous
prokaryotic RNA polymerase to the vessel to transcribe the DNA instead of relying on the
RNA polymerase in the cell extract, and by using a [sic, an] eukaryotic cell extract instead
of an E. coli (prokaryotic) cell extract.” The examiner relies upon Krieg to account for these
differences.
Having considered Baranoy and Krieg together, we disagree with the examiner's
conclusion that one of ordinary skill in the art would have found the subject matter of claim
22 obvious from a consideration of these two references. In essence, the examiner
proposes to add an RNA polymerase to the cell free system of Baranoy and replace the
prokaryotic cell extract in Baranoy with a eukaryotic cell extract. While Krieg does
describe the use of an RNA polymerase such as SP6 RNA polymerase in a eukaryotic cell
extract, we do not find that the references support the modifications to Baranoy proposed
by the examiner. While Krieg does use SP6 RNA polymerase for a transcription, the
transcription takes place away from the cell extract which will be used in support of in vitro
translation. Baranoy discusses a similar system in the paragraph bridging pages 463-64,
i.e., the use of mRNA pre-synthesized using SP6 RNA polymerase.
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