Appeal No. 2006-1270 Page 9
Application No. 10/222,614
study of the process of homologous recombination as exemplified
by the experiments of Brenneman. Brenneman [ ] shows that
cleavage at two repeated sites in a target sequence for
homologous recombination increases the rate of homologous
recombination, and further shows a large repeated sequence as a
substrate for homologous recombination. Chandrasegaran shows
that a chimeric zinc finger-Fok-I endonuclease may be designed to
specifically bind to a sequence of 9 base pairs and that it is
possible to design the zinc finger portion to bind to a target
sequence of choice. It is further obvious from consideration of the
effect of expression of endonucleases on cell viability in both
Brenneman [ ] and Chandrasegaran that the lethality of the
endonuclease used by both groups is due to cleavage at multiple
sites in the host cell chromosome, especially in view of the
observation by Brenneman [ ] that the rare-cutter PI-Sce I is not
lethal to the host cell. Therefore both the cells of Brenneman [ ]
and Chandrasegaran show cells with multiple target sites for
endonucleolytic cleavage.
Id. at 8.
Appellants argue that “[n]owhere do the cited references, alone or in
combination, teach or suggest the cells including two chimeric zinc fingers as
claimed.” Appeal Brief, page 9. Moreover, appellants assert that “the
Examiner’s interpretation that the claims ‘include cells with two identical zinc
finger proteins’ and ‘two identical zinc finger target sites’ is not correct . . . [as]
throughout prosecution, Appellants have repeatedly characterized the claimed
subject matter as relating to ‘cells comprising two zinc finger proteins of different
sequence.’” Reply Brief, page 8. We agree, and the rejection must be reversed.
As we have stated above, the examiner’s rejection is based on an
erroneous claim construction. And as the examiner has not pointed to how the
references as combined teach or suggest a cell comprising two different
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