Appeal No. 1999-1157
Application No. 08/482,321
Thus as explained by appellants the lac promoter-operator is regulated by the lac
repressor and this repression of gene expression from the lac promoter/operator is
relieved by IPTG.
This, however, raises the question of what effect IPTG would have had on
appellants’ comparison of the lac promoter-operator with the trp promoter-operator
as explained in the specification (pages 22 and 23), figure 7 and the Kleid
Declaration. This comparison tests the expression of the lac construct in the
presence or absence of tryptophan (which regulates the trp promoter-operator), not
IPTG (which regulates the lac promoter-operator). Appellants’ specification,
however, resolves this issue. As explained in appellants’ specification (page 23) E.
coli 294 cells were used to compare the expression of the lac and trp constructs.
The specification (page 16) makes reference to Backman with regard to E. coli K-
12 strain 294.
Backman use a lac promoter-operator construct to drive expression of the ?
repressor. Backman teach in Table 2 (page 4176) that “Strain 294 makes wild-type
lac repressor levels.” However, Backman also teach (page 4176, column 2) in
reference to Table 2 that “[a] strain bearing a wild-type lac operon does not make
enough lac repressor to repress significantly the synthesis of ? repressor from the
lac promoters….”
Therefore, it does not appear that IPTG would have significantly affected
appellants evidence of unexpected results. Absent a reasoned statement by the
examiner as to why appellants’ results are not unexpected, we find that the examiner
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