Appeal No. 1999-1510
Application No. 08/447,997
We disagree. The relevant passage is found in the “Background of the Invention”
section of the Robinson patent, and reads as follows:
Jar et al. . . . teach production o f mice with a DNA construct that
contains a mutant SV40 large T antigen gene (the SV40 tsA58
mutant) linked to a major histocompatibility complex I promoter (H-
2Kb). The specific promoter is used to facilitate expression of the
transgene in a wide variety of tissues, and is induced by certain
interferons. These mice are used as a source for generating
transformed cell lines.
Robinson, column 1, lines 50-58.
However, the mere fact that the SV40 large T antigen gene had been
expressed under the control of an interferon-regulated promoter would not
necessarily have led those skilled in the art to combine it with another interferon-
inducible promoter, unless the prior art provided some reason to do so. As
Appellants point out (Appeal Brief, pages 17-18), Robinson does not suggest
combining the SV40 large T antigen gene with an interferon-inducible promoter.
Rather, Robinson suggests use of “promoters primarily active in platelet
precursor cells, megakaryocytes, and/or megakaryocyte precursor cells such as,
for example, the PF4 promoter.” Column 4, lines 10-15.
The examiner has pointed to nothing in the remaining references that
would have led those skilled in the art to make the required combination. We
have reviewed the cited references but we find nothing in them that would have
suggested the claimed invention to those of ordinary skill in the art. McKay
discloses conditionally immortalized cells that express the SV40 large T antigen
but does not suggest expressing the T antigen gene under the control of an
inducible promoter, much less an interferon-inducible promoter such as the Mx-1
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