Appeal No. 2002-1367 Page 12
Application No. 08/981,964
Brief, page 9. More particularly, “Appellants do not contend that the person of
ordinary skill in the art would therefore assume that transcriptional regulation was
unlikely, but merely that regulation of gene expression is no more likely to be via
transcription than not.” Reply Brief, page 7 (emphasis added).
Thus, as I understand it, Appellants’ argument is that Kirsch provides an
example of a yeast sterol synthesis gene that is regulated by ergosterol at the
level of transcription, while Dimster-Denk provides a counter-example of a yeast
sterol synthesis gene that is regulated at the level of translation. Since Servouse
provides no data to distinguish between the possibilities, the argument seems to
go, the evidence is in equipoise; the examiner’s rejection is not supported by a
preponderance of the evidence.
The examiner provides the converse of Appellants’ argument: although
Dimster-Denk shows that HMG-CoA reductase is regulated at the translational
level,
this is balanced by the disclosure of Kirsch et al[.] which shows that
Saccharomyces cerevisiae lanosterol 14-α-demethylase (also
another enzyme in the ergosterol biosynthetic pathway) is clearly
regulated at the transcriptional level. As such[,] one of ordinary skill
in the art would not have believed that transcriptional regulation of
sterol biosynthetic genes in yeast was unlikely.
Examiner’s Answer, pages 9-10. The examiner argues that those skilled in the
art would have considered transcriptional regulation more likely because it is
more common and more efficient. See id., pages 7-8. Unfortunately, as the
majority points out, the examiner did not cite any evidence to support these
assertions.
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