Appeal No. 1999-1157
Application No. 08/482,321
At the outset we note that this application was filed on June 6, 1995.
However, through a number of continuation applications, this application has an
effective filing date of March 24, 1980. Accordingly, we look back over 20 years to
evaluate the obviousness rejections of record from the perspective of a person of
ordinary skill in the art at the time this invention was made.
Initially, we note that appellants agree with the examiner with regard to the
teachings in Goeddel and the disclosure of Cohen. Appellants state (Brief, page 7)
that “[t]he Examiner cites Goeddel et al solely for the proposition that it teaches the
expression of chemically synthesized genes for human insulin in E. coli. As limited
to this teaching, Appellants concur with the Examiner.” Appellants also “agree
[Answer, page 8] with the Examiner that Cohen et al. teach ‘the formation of
plasmids containing promoters and eukaryotic genes used to transform cells and
produce proteins’. Appellants also agree with the Examiner that Cohen et al. teach
‘the use of trp operons with various deletions’.”
Cohen in view of Bertrand and Goeddel:
The examiner argues (Answer, page 9) that “Bertrand et al. disclose
attenuator-deleted trp operons, and the step of inducing transcription from the trp
operons by trp starvation.” However, we note the limitation of appellants’ claim 1
section (iv) which states in part “a structural gene … comprising 6 amino acids of
the trp leader peptide, [and] … at least about the distal third of the trp E
polypeptide….” The examiner does not explain, and we do not find, where Bertrand
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