Interference No. 105,136 Paper 62
Wang v. Imler Page 18
follows that H5dl1016 could be propagated in a cell line that provides both E1b and E4
functions.10
As we have noted the H5d/1016 mutant was propagated in the 293 cell line (FF
49) which only complements for E1 (FF 42). This indicates that the 116R protein
encoded by E4 ORF 3 is not necessary for DNA replication of the H5d/1016 mutant.
The data presented in Bridge II indicate that the virus is able to replicate if either E4
ORF 6 or ORF 3 is present. (Table II at 349). H5d/1016 does not contain a deletion of
E4 ORF 6 and thus can replicate in the 293 cell line. Moreover, neither claim 66 nor
claim 67 requires deletion in E4 such that the E4 deletions alone would result in a virus
that is replication defective. In other words, neither claim requires a “lethal” E4 deletion.
We further recommend that the examiner reject claims 66 and 67 of the '143
application under any other appropriate basis upon the resumption of ex parte
examination of the '143 application, including rejecting the claims in view of Berkner I,
Berkner II, Bridge I, Bridge II in combination with any other prior art within the
examiner's knowledge.
V. Order
Upon consideration of the record and for reasons given, it is
10 The prior art before us describes a cell line (293) that is said to
complement for E1 and a cell line that is said to complement for E4 (W162). (FF 42
and 50). However, since neither claim 66 nor claim 67 requires a cell line (claim 66
requires that the defective virus "can be prepared by passage in a cell line providing the
E1 and E4 functions in trans"), we need not decide if a cell line complementing for both
E1 and E4 would have been obvious.
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