Appeal No. 1997-1307
Application No. 08/014,012
1995 (Paper No. 31) and July 1, 1996 (Paper No. 35) were not entered into the
record, and therefore will not be relied upon for our decision.
THE REJECTION UNDER 35 U.S.C. § 103:
The examiner applies Weng, Hosaka and Tsukagoshi for their respective
teaching of the cloning and expression of the pyrG, CKI, and CCT genes. While the
examiner acknowledges that no reference suggests a recombinant DNA
comprising pyrG and CCT (claim 24), or pyrG, CKI and CCT (claim 23), the
examiner suggests that “[i]t would have been obvious … to combine the cloned
genes … in order to construct a biosynthetic pathway to produce CDP-choline”
(Answer11, page 8). The examiner argues (Answer, page 9) that the “[m]otivation to
combine the references is provided by Gennari who teaches that CDP-choline has
therapeutic use in treating cerebral hemorrhages and cerebral thromboses…”
The examiner acknowledges (Answer, page 9) that the combination of
Weng, Hosaka, Tsukagoshi and Gennari “do not teach or suggest co-culturing two
strains or species of microorganisms to produce CDP-choline.” The examiner
argues (Answer, page 9) that “[t]his aspect of the claimed processes, however, is
suggested by Nudler et al.” While recognizing that Nudler “do not disclose the UTP-
producing properties of their mutant strain” (Answer, page 10) which are specifically
required in the claimed process, the examiner emphasizes that Nudler’s
microorganism produces UMP levels in the fermentation medium of up to 4 mg/ml.
11 The examiner makes a new Ground of rejection in the Supplemental Answer and
states (Supplemental Answer, page 3) “[t]his rejection is explained in the
[e]xaminer’s Answer to appellants’ brief on appeal.”
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