Appeal No. 2002-1367 Page 9
Application No. 08/981,964
Servouse measured a reduction of enzyme activity, with no analysis of mRNA or
protein levels. See Reply Brief, page 3-4. The question thus becomes that,
based on the evidence provided on the record, would the ordinary artisan
conclude that acetoacetyl-CoA thiolase is regulated at the level of transcription.
The examiner bases her conclusion on conclusory evidence, and the dissent
bases his conclusion on the interpretation of “repressing” and “inducing.” The
Dimster-Denk reference, however, was provided by appellants to demonstrate
that enzyme regulation may occur in ways other than transcription. As it is the
burden of the office to demonstrate unpatentability by the preponderance of the
evidence, and as appellants have provided evidence to demonstrate that enzyme
regulation may occur at levels other than transcription, we find that the evidence
of record does not support the obviousness rejection.
CONCLUSION
Because the rejection fails to set forth a prima facie case of obviousness,
it is reversed.
REVERSED
Demetra J. Mills )
Administrative Patent Judge ) BOARD OF PATENT
)
) APPEALS AND
)
Lora M. Green ) INTERFERENCES
Administrative Patent Judge )
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