Appeal 2007-0082
Application 10/171,498
Background
The claimed invention relates to a seed of a fertile, transgenic maize plant
which incorporates a nucleic acid sequence encoding phosphinothricin acetyl
transferase (PAT). The enzyme phosphinothricin acetyl transferase inactivates the
active ingredient in the herbicides bialphos, or phosphinothricin. Phosphinothricin
inhibits glutamine synthase causing rapid accumulation of ammonia and cell death.
(Strauch, col. 1, ll. 13-35; see also, U.S. Patent No. 6,395,966, col. 3, ll. 7-16.)
Thus, the PAT gene confers herbicide resistance to a corn plant.
Issue
The issue in this case is whether Tomes and Strauch provide a reasonable
expectation of successfully obtaining a seed of a fertile, transgenic maize plant,
said seed comprising a chromosomally incorporated nucleic acid sequence
encoding PAT and capable of being cultivated to produce a transgenic maize plant
having resistance to a herbicide comprising phosphinothricin.
Obviousness
Claims 39-45 stand rejected under 35 U.S.C. 103(a) as obvious over Tomes1
1 U.S. Patent 6,258,999 B1 to Tomes et al., issued July 10, 2001, and has an
effective filing date of June 10, 1988. The Tomes patent issued from Application
No. 08/442,522 filed May 16, 1995 which was a divisional of Application No.
08/319,352 filed on Oct. 6, 1994; which is a continuation of Application No.
07/906,018 filed on June 26, 1992; which is a continuation of Application No.
07/581,154 filed on Sept. 7, 1990; which is a continuation of Application No.
07/205,155 filed on June 10, 1988.
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