Appeal No. 2002-2030 Page 13
Application No. 09/294,663
patentably distinct from the subject matter claimed in a commonly owned patent.”
In re Berg, 140 F.3d 1428, 1431, 46 USPQ2d 1226, 1229 (Fed. Cir. 1998).
Instant claims 3, 5, 7, and 10 compare to claims 1-3 and 6 of the ‘558
patent as follows:
Instant claim: ‘558 patent claim:
3. A recombinant DNA sequence 2. An isolated polynucleotide encoding
comprising a DNA sequence that an invertebrate intestinal mucin, said
codes for an IIM protein, wherein a polynucleotide comprising a nucleotide
nucleic acid sequence of said sequence selected from the group
recombinant DNA sequence is selected consisting of:
from the group consisting of: a) SEQ ID No. 1; and
a) a cDNA sequence as shown b) SEQ ID No. 2.
in SEQ ID No. 1; and
b) a cDNA sequence as shown
in SEQ ID No. 2.
5. The recombinant DNA sequence of 1. An isolated polynucleotide encoding
claim 3, wherein said IIM has an amino an invertebrate intestinal mucin
acid sequence selected from the group comprising an amino acid sequence
consisting of: selected from the group consisting of:
a) SEQ ID No. 3; and a) SEQ ID No. 3; and
b) SEQ ID No. 4. b) SEQ ID No. 4.
7. A gene expression vector containing 3. An expression vector comprising an
a recombinant DNA sequence expression control sequence
encoding a Trichoplusia ni IIM protein operatively linked to the polynucleotide
sequence. of claim 1 or claim 2.
10. The expression vector of claim 7, 6. The expression vector of claim 3,
wherein said expression vector is a wherein the expression vector is a
recombinant plasmid adapted for plant expression vector.
insertion into and transformation of a
plant.
Thus, claims 1 and 2 of the ‘558 patent are generic to instant claims 3 and
5. That is, the ‘558 patent’s “isolated polynucleotide” is generic to DNA and
RNA, either recombinant and nonrecombinant. However, DNA is an obvious
form of polynucleotide, in that it is one of only two available options; it is also the
form in which polynucleotides are stably found within living cells. And
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