Appeal 2007-1069
Application 10/334,990
Fig. 6 of the Specification shows that not all methods in which the
three genes are co-expressed in a microorganism result in reducing
intermediate accumulation (see supra on p. 5). In sum, there is nothing in
the record that would lead us to believe that adjusting the co-expression
levels according to “turnover rates” to reduce intermediate accumulation is
an obvious solution to the problem of amino acid production addressed by
Appellants’ claims.
For the foregoing reasons, we reverse the rejections of claims 17, 18,
and 30 as obvious over Wagner.
Rejection under nonstatutory obvious-type double-patenting
Claims 17-19, 21-24, 26-28, 30-38, and 41-46 stand rejected on the
ground of nonstatutory obvious-type double patenting over claims 1-56 of
US 6,713,288 (Answer 12).
Appellants request that the rejection “be held in abeyance until the
time allowable subject matter is identified” (Br. 27). Since Appellants have
not disputed the merits of the rejection, we affirm it.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv)(2006).
AFFIRMED
dm
OBLON, SPIVAK, MCCLELLAND, MAIER & NEUSTADT, P.C.
1940 DUKE STREET
ALEXANDRIA VA 22314
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