Appeal No. 1999-1331
Application No. 08/547,602
We would, initially, note that appellant is correct concerning the typographical
error page 4, second sentence which refers to "L-fuculose isomerase" rather the correct
term "fucose isomerase."
To the extent that appellant presents arguments with respect to the deficiency of
Green as to whether the description should be read as describing a fucose isomerase,
we would note that these arguments were not presented in this manner in either the
Appeal Brief or the Reply Brief. We would note that appellant had raised a similar
argument in the paragraph bridging pages 4-5 of the response filed July 8, 1997 (Paper
No. 7). It would appear that this argument was directed to the patentability of at least
claim 1, which was pending in the application at that time, and which required the use of
a purified L-fucose isomerase. That limitation is not present in the claims currently
pending in this application. However, the examiner responded to this argument at
pages 3-4 of the Office action of October 20, 1997 (Paper No. 8) stating :
[t]he cell-free extract disclosed by Green is encompassed by the claim
language "purified" present in claim 1. It is respectfully submitted that
unless it is clear from reading the specification that the word "purified" is
intended to have such a meaning, the language "purified" does not mean
that the enzyme is purified to homogeneity, or by a particular process,
unless the claims so recite. Note that the examples in the specification all
use "crude extract" (820 Units/ml) of L-fucose isomerase. See
specification at pages 27 (line 6), page 28 (line 11), page 29 (lines 13 and
14). Note also that claim 12 does not recite that the enzyme is purified.
Thus, the language "purified" in claim 1 does not distinguish the claimed
process from that suggested by the cited prior art.
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