Appeal No. 2005-0394 Page 3
Application No. 08/940,692
Claims 23-27, 29-31, 33-38, 42, 44, 46, 49 and 50 stand rejected under 35
U.S.C. § 103 as being unpatentable over Frost, Holms, Ingrahm and Saier.
We reverse.
DISCUSSION
The Combination of Saier and Ingrahm:
According to the examiner (Answer, page 4) Saier
teach methods of selecting a Pts-/glucose+ S. typhimurium strain
comprising deleting the PTS genes (ptsH and ptsI), culturing the
mutant cell using glucose as the sole available carbon source and
selecting cells with a fast growth rate on glucose.[1] The mutant
cells of Saier et al. use the galactose permease for the transport of
glucose…. The fastest growth rate specifically obtained by the
mutants of Saier et al. was 0.35/hr. Applicants claimed methods
recite selecting cells with a growth rate of at least 0.4/hr.
In addition, the examiner finds (id.) Ingrahm
Teach that it would be advantageous to increase the supply of PEP
in a cell used for production of a desired product, in particular
aromatic amino acid production, by modifying an enteric bacteria
such as E. coli to use an alternative pathway from the PTS system
for glucose uptake such that PEP production is not obligately
coupled to glucose transport….
Based on this evidence, the examiner concludes (Answer, page 5), “one of
ordinary skill in the art would have been motivated to screen for Pts-/glucose+
cells such as those of Saier et al. with even higher growth rates than those
specifically disclosed by Saier….” According to the examiner (id.), since Saier
“disclose cells with growth rates very close to the claimed rate of at least 0.4/hr
1 The examiner failed to identify, and we are unable to locate, exactly where Saier specifically
teaches “selecting cells with a fast growth rate on glucose.” Upon consideration of Saier, we find
that the only selection criteria reported was that the cells “grew on glucose as the sole source of
carbon.” Saier, page 512, first column. While we recognize that Saier noted (id.) that the two
strains selected for growth on glucose, happened to take up glucose “four to six times more
rapidly than by the parental strains…”, we find nothing in Saier, to suggest that the cells were
selected for a fast growth rate on glucose.
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