Interference 105,004 Paper 18
DeBoer v. Gordon
28. According to Dr. Strijker, nothing in Campbell & Rosen,
or in the prior art available at the time, indicated whether the
WAP gene had other regulatory promoter sequences, or where they
were. (Id.)
29. Dr. Strijker states that the Rosen et al. reference
(JE010), published March 30, 1986, reporting the failure to
observe WAP gene expression in the majority of transfectants
analyzed, is “entirely consistent with and reinforce” his
conclusions based on the unusual TATA box reported for the WAP
gene.
30. Review of Rosen confirms Dr. Strijker’s
characterization of that reference: Rosen reported that WAP gene
expression was not observed in a majority of transfectants
arising from the transfection of entire rat $-casein and WAP
genes into mammary gland cells. (JE010 at 146.)
The parties’ arguments
31. The parties urge that it would not have been obvious,
given what was known about the WAP promoter, to use the WAP
promoter to express a protein in bovine milk based on the broader
genera or alternative species of promoter recited in the DeBoer
claims. More specifically, they urge that nothing in the prior
art would have motivated the selection of the WAP promoter, and
that the state of the art actually taught away from using the WAP
promoter.
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