Appeal No. 1999-1425
Application No. 08/393,321
method comprising the steps of first passing liquid containing plasmid-containing bacterial
cells through a bead mill containing beads of about 0.1 mm to about 1 mm in diameter, at
an agitation speed of about 1,000 to 2,500 rpm. Appellant explains that the use of such
lower-speed agitation disrupts cells with minimal damage to the DNA plasmids contained
therein.
The rejections under 35 U.S.C. § 103
The examiner's rejection of claims 1 - 9 depends on the combined teachings of
Sambrook and Sauer.
The examiner relies on Sambrook as describing the isolation of plasmids from host
cells using many methods to first disrupt the host cells. (Answer, page 4). The examiner
acknowledges that Sambrook does not teach the use of microfluidization disruption as a
feasible method for plasmid isolation. (Id.). The examiner cites Sauer as teaching the
disrupting of cells using a microfluidizer to isolate intracellular components at 30 - 95 MPa.
(Answer, page 5). Therefore, the examiner urges that (Answer, page 4):
[i]t would have been obvious at the time the invention was made to isolate
plasmid DNA from cells using a microfluidizer given that Sauer teaches that
microfluidization is a good method for disrupting cells to recover their
components.
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden of
presenting a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992). Only if that burden is met, does the burden of
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