Appeal No. 2001-1148 Page 8
Application No. 09/114,552
We can find nothing in the prior art that would lead one of ordinary skill to select
Kitamoto’s technique as the means for inserting Kress’ reporter gene in the mouse
chromosome.
We now turn to Sista which, like Kress, examiner has cited for its teaching
of a reporter gene. According to the examiner5, Sista teaches mouse fibroblast cells
transfected with a construct “containing a triplet repeat of the TPA response element
(TRE) upstream of a thymidine kinase promoter fused to the human growth hormone
(hGH) gene” (lines 6-8). Therefore, Sista is directed to inserting a particular reporter
gene within the chromosome of a mouse cell. While we recognize that Sista
indicates that the mouse fibroblast cell line “has been stably transfected”, how the
“stably transfected” cell line has been produced is not explained. It is a matter of
speculation whether Sista employed a homologous recombination technique, like
the one claimed, to insert the disclosed construct in the mouse chromosome.
Accordingly, Sista is relevant only to the extent that it teaches a particular reporter
construct. In that regard, modifying Tartaglia in view of Sista would result in Sista’s
particular reporter-containing construct residing somewhere on the mouse
chromosome. This combination of references, however, fails to lead one of ordinary
skill to locate the construct on the chromosome such that “the expression of the
5 Examiner (Examiner’s Answer, p. 6) states that
Sista teaches a cell-based assay for identifying modulators of gene expression. In this
system, cells were stably transfected with a reporter gene operably linked to TPA response
elements (TREs). TREs are DNA segments which stimulate RNA transcription in response to
protein kinase C (PKC) activity, so modulation of PKC activity is reflected in modulation of
reporter gene expression. The reporter gene in this assay encoded human growth hormone
(hGH). Modulators of gene expression were identified by incubation of candidate compounds
with cells containing the reporter construct, and subsequent measurement of hGH expression.
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