Appeal No. 2006-1270 Page 7
Application No. 10/222,614
Therefore, as the examiner has failed to set forth a prima facie case of
unpatentability under 35 U.S.C. § 112, first paragraph, we are compelled to
reverse the rejection.
Claims 114, 116 and 119-122 stand rejected under 35 U.S.C. § 103(a) as
being obvious over the combination of Brenneman and Chandrasegaran.
The panel would first like to note that the rejection is premised on an
incorrect claim construction.
Claim 114 is drawn to “[a] cell comprising first and second engineered zinc
finger proteins, where each of the zinc finger proteins further comprises an
endonuclease or functional fragment thereof, and further wherein: (a) the first
protein binds to a first target site; and (b) the second protein binds to a second
target site.”
According to the examiner, “[t]he phrase ‘A cell comprising first and
second engineered zinc finger proteins’ . . . is interpreted to include cells with two
identical zinc finger proteins. The phrase ‘(a) the first protein binds to a first
target site; and (b) the second protein binds to a second target site’ . . . is
interpreted to include two identical zinc finger target sites.” Examiner’s Answer,
page 6.
The problem with the examiner’s construction is that it is reading the
limitations “first and second engineered zinc finger protein” and “a first target site”
and “a second target site” out of the claims. We construe “first and second
engineered zinc finger protein” as two distinct and different zinc finger proteins,
and construe “a first target site” and “a second target site” as two distinct and
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