Appeal No. 2003-1993
Application No. 09/470,526
The examiner concludes (Id., pages 8-9)
Given the unpredictability of determining the function of isolated nucleic
acids comprising a polynucleotide having at least 80% identity to the
entire coding region of SEQ ID NO:1, the unpredictability of altering the
phenotype of a plant by transforming it with an isolated nucleic acid of
SEQ ID NO:1 or isolated nucleic acids comprising a polynucleotide having
at least 80% identity to the entire coding region of SEQ ID NO:1, the
absence of guidance in the specification for making and using said nucleic
acids and transgenic host cells, plants, and seeds, the lack of working
examples, and given the breadth of the claims which encompass multiple
polynucleotides having at least 80% identity to the entire coding region of
SEQ ID NO:1, it would require undue experimentation by one skilled in the
art to make and/or use the claimed invention.
Analysis of the enablement requirement in the present case dovetails with our
analysis with respect to the written description requirement. In particular, the
specification specifically describes the chemical structures of a polynucleotide that
encodes a polypeptide of SEQ ID NO:2 and a polynucleotide comprising the coding
sequence set forth in SEQ ID NO:1. The specification also provides an example of
how to screen for WEE1 activity, specification, Example 1, pages 33-34 and Example 3.
Brief, page 9. In addition, the specification page 3, lines 17-31, “describes the level of
skill in the art as well as indicating areas of the wee1 gene that can be altered without
disturbing substrate recognition.” Brief, page 7. Moreover, the specification, page 3,
states, “Most of the variations in amino acid sequences of WEE1 are in the amino
terminus, while the carboxy end of the genes are relatively conserved. The carboxyl
terminus and the central portion of the WEE1 protein from S. pombe contain the protein
kinase domains and sequence crucial for substrate recognition and catalysis.”
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