Appeal No. 2003-0936
Application No. 09/532,806
fragment of the whole 3536 bp nucleotide appellants describe, and
the 639 bp fragment is defined solely in terms of its enzymatic
restriction sites. The number of promoters which have been used to
effect expression of phenotypic genetic codes appears to be small,
yet appellants serendipitously have discovered one which preferably
promotes expression of a gene to which it is fused only when a
plant transformed by the construct is stressed and disclosed its
sequence and functional properties in the application before us.
The claims are narrowly limited to promoters having 3536 contiguous
named nucleotides and functionally effective fragments thereof
having at least 95 contiguous nucleotides. The prior art cited by
the examiner relating to the activity and requisite functional
sequences of the cauliflower mosaic virus 35S and nopaline synthase
(nos) promoters does show that the nucleotide structure essential
for promoter activity is highly unpredictable. However, the same
prior art shows that the level of skill and knowledge in this art
is extremely high, that mutations and deletions to the basic
sequence more often than not lower rather than eliminate promoter
activity, and that it is well within the ordinary skill of the
artisan to determine those nucleotide sequences which are critical
for functional activity.
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