Appeal No. 1997-3116
Application 08/294,953
secreted alkaline phosphatase gene, under specific culture conditions.2 The
instant specification provides evidence that the Tn-5B1-4 cell line meets this
limitation. See pages 12-13 and Table 3 (showing alkaline phosphatase
expression at an average of 2.29 IU/ml in cell line Tn-5B1-4).
Summary
We reverse the rejection of claims 1-8 and affirm the rejection of claims 9
and 10. We also enter a new ground of rejection of claims 1 -3, 7, and 8, based
on anticipation. As a result, claims 4-6 are free of rejection.
In addition to affirming the examiner=s rejection of one or more claims, this
decision contains a new ground of rejection pursuant to 37 CFR ' 1.196(b)
(amended effective Dec. 1, 1997, by final rule notice, 62 Fed. Reg. 53,131,
53,197 (Oct. 10, 1997), 1203 Off. Gaz. Pat. & Trademark Office 63, 122
(Oct. 21, 1997)). 37 CFR ' 1.196(b) provides, AA new ground of rejection shall
not be considered final for purposes of judicial review.@
TIME PERIOD FOR RESPONSE
Regarding any affirmed rejection, 37 CFR ' 1.197(b) provides:
(b) Appellant may file a single request for rehearing within two
months from the date of the original decision . . . .
infection by a recombinant . . . virus expressing secreted alkaline phosphatase.” The claim
obviously should recite a recombinant virus expressing ß-galactosidase.
2 Claim 8 also contains an apparent typographical error that should be corrected if this case is
subject to further examination. Claim 8 is drawn to cells expressing a specific level of alkaline
phosphatase but recites measuring, in step (i), “ß-galactosidase production at six days post
infection.” The enzyme measured should obviously be alkaline phosphatase.
10
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