Appeal No. 1997-4272
Application No. 08/429,053
Finally, claim 24 refers to “proteins having saccharose phosphate
synthetase (SPS) activity of Sequence ID #11 or Sequence ID #12.” In addition
to the definiteness problem discussed above, we note that SEQ ID NO:12 is the
nucleic acid sequence which encodes the amino acid sequence of SEQ ID
NO:11. Thus, SEQ ID NO:12 has no “saccharose phosphate synthetase (SPS)
activity.” The examiner may wish to clarify this aspect of claim 24 as well.
Summary
We affirm the rejection of claim 23 under 35 USC 11, second paragraph,
and enter a new rejection of claim 24, for indefiniteness. We also vacate the
obviousness rejection with respect to claims 23 and 24, because they are too
indefinite to be evaluated for obviousness. We reverse the rejection of claim 11
because the evidence does not support a prima facie case of obviousness with
respect to the specific cell lines recited in the claim. Thus, claim 11 is not subject
to any outstanding rejection.
Time Period for Response
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, “A new ground of rejection shall not be
considered final for purposes of judicial review.”
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