Appeal No. 1995-2789
Application No. 07/788,114
declarations. We remind appellants that “[r]eview of an examiner’s refusal to
enter an affidavit as untimely is by petition and not by appeal to the Board of
Patent Appeals and Interferences.” In re Deters, 515 F.2d 1152, 1156, 185
USPQ 644, 648 (CCPA 1975); Ex parte Hale, 49 USPQ 209 (Bd. App. 1941).
We also note appellants’ comment (Reply Brief, page 9), “the [e]xaminer
did not comment on [a]ppellants’ offer [to supply a declaration] and did not
request a [d]eclaration.” We remind appellants, that the burden is on appellants
to establish the facts necessary to “overcome” a reference. In re Facius, 408
F.2d 1396, 1404, 161 USPQ 294, 300 (CCPA 1969). Thus, in our opinion, it is
not the examiner’s burden to “request a declaration”.
Accordingly we affirm the rejection of claims 1, 2, 5 and 7 under 35 U.S.C.
§ 102(a) as being anticipated by Reinscheld.
THE REJECTION UNDER 35 U.S.C. § 103:
According to the examiner (Answer, page 8) Reinscheid “teach a mutant
homoserine dehydrogenase of Corynebacterium glutamicum which is insensitive
to feedback inhibition by threonine due to an altered amino acid at the carboxy
terminus and a method of producing and selecting for such mutant….” The
examiner finds (Answer, page 9) that Reinscheid “teach that the region after
codon 400 is the threonine recognition or binding site for feedback inhibition …
and suggest[s] site-directed mutagenesis experiments in that region to obtain
16
Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: November 3, 2007