Appeal No. 2003-0936
Application No. 09/532,806
(2) “the specification, while being enabling for the isolated
nucleic acid that is the maize GRP promoter described in Example 1,
transgenic plants and cells comprising said promoter, and method of
preparing said transgenic plant, does not reasonably provide
enablement for other isolated nucleic acids that are a maize GRP
promoter, or transgenic plant, seeds and cells comprising other
isolated nucleic acids” (EA 3). In support of the final
rejections, the examiner cites Kim, Y., et al., “A 20 nucleotide
upstream element is essential for the nopaline synthase (nos)
promoter activity,” Plant Molecular Biology, Vol. 24, pp. 105-117
(1994), and Benfey, P., et al., “The Cauliflower Mosaic Virus 35S
Promoter: Combinatorial Regulation of Transcription in Plants,”
Science,” Vol. 250, pp. 959-966 (1990).
Discussion
1. Rejection for inadequate written description
Figure 4 describes SEQ ID NO:1 by naming its 3536 contiguous
nucleotides. In so doing, appellants’ specification, as originally
filed, prima facie described each and every isolated 95, 110, 125,
250, 400, 750, 1000, 1500, 2000, 2500, and 3000 contiguous
nucleotide segment of the 3536 contiguous nucleotides of SEQ ID
NO:1 comprising a functional maize GRP promoter. Nevertheless, the
examiner is concerned that appellants’ specification does not
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