Appeal No. 1998-1719
Application No. 08/442,603
In the Final Office Action4 (page 4), the examiner finds that the combination
of Martin in view of Levinson and Clark teach the pGB20 plasmid. The examiner
relies (Answer, pages 4-5) upon Martin to teach the glucocerebrosidase gene. The
examiner states (Answer, bridging paragraph, pages 6-7) that:
Appellants argue that the glucocerebrosidase gene of Martin et al. is
not the functional equivalent of applicant’s gene segment. This is not
persuasive because applicants have failed to show that the
glucocerebrosidase gene of appellants is different in an unobvious
manner from the gene of Martin et al. Appellants argue that their
original gene segment was extensively modified but fail to show how
the modified segment (included within the claimed plasmids) differs
from the gene segment of Martin et al. … Martin et al. state on page
100 that “the cDNA for human glucocerebrosidase was obtained from
plasmid pUC19/GC … This cDNA contained 5’ and 3’ untranslated
sequences as well as the complete coding region for
glucocerebrosidase.” … The nucleotide sequence of pUC19/GC is
not given so it is not clear that the Eco RI – Xba I fragment of the
cDNA insert of this plasmid contains the complete 5’ and 3’ non-
coding regions of the human GCR gene but merely that at least some
of these sequences are present.
Appellants’ specification (page 18, lines 5-26) discloses:
To optimize expression of GCR in mammalian cells, we further
modified the GCR.D21 … the modifications were made using
oligonucleotide directed mutagenesis … to alter the nucleotide
sequence near the GCR translation start to match the consensus
sequence (CCACCATGG) for optimal translation in mammalian cells
… and to delete the excess sequence 3’ of the gcr.D21C stop codon.
… A bicistronic gcr-dhfr expression vector for CHO cells was
constructed as shown in Fig. 7 … This vector, pGB20, contained
gcr.D21C ….
Appellants’ figure 6 illustrates the modifications made to obtain gcr.D21C,
including the oligonucleotide directed mutagenesis of the GCR translation start to
match the consensus sequence described on page 18 of the specification. Figure
4 Paper No. 13, mailed October 4, 1995.
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