Appeal No. 1999-1367
Application 08/453,998
The claims are rejected as unpatentable over Cushing taken with Evans and a
number of additional references. The additional references deal with variations of the
estrogen receptor protein, variations of the estrogen response element, genetic
engineering methods or assays, and with use of protease deficient yeast. Cushing
teaches culturing yeast in the presence of estradiol. Evans teaches, among many other
things, a process for controlling the expression of a heterologous protein using a hormone
responsive transcriptional control unit very similar to the control method recited in
appellants’ claims. Evans mentions yeast exactly once in the >40-page patent disclosure,
in column 10, lines 52-54, in the “Summary of the Invention.” The summary starts with
statements regarding DNAs encoding proteins which have the hormone-binding and/or
transcription-activating properties characteristic of a glucocorticoid receptor, a
mineralocorticoid receptor, or a thyroid hormone receptor. After several paragraphs
dealing with the nucleic acid coding sequence, Evans states that the invention comprises a
cell, preferably a mammalian cell, transformed with a DNA of the invention, expressing the
receptor in a cell. The next paragraph states that the invention comprises cells, including
yeast cells and bacterial cells such as those of E. coli and B. subtitlis, transformed with
DNA’s of the invention. Five paragraphs later, Evans discusses “methods for producing
desired proteins in genetically engineered cells.”
We do not agree with the examiner that the single mention of yeast in Evans is
sufficient to suggest application of Evan’s expression control method to yeast with a
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