Appeal 2007-2542
Application 10/623,891
(FF 6), persons of skill in the art would have had reason to have applied
Witter ‘97’s teaching about RM1 to other MDV strains.
Appellants also argue that if the process of Witter ’97 were repeated,
there would have been no reasonable expectation of success that the LTRs
would be inserted at the claimed position (Appeal Br. 10). Specifically,
Appellants assert that Jones “provides no guidance how the site of insertion
could be controlled to ensure insertion of an LTR” upstream from IPC4
(Appeal Br. 11).
We are not persuaded by Appellants’ argument. Witter ’97 states that
cocultivation of MDV and REV results in efficient integration of REV
sequences into MDV (Witter ’97, at 408). Witter ’97 also states that the
insertion sites “are not random” (id.) and that “inserted retroviral sequences
vary but commonly consist of solitary or partial” LTR sequences (id.). See
also Answer 16. Therefore, it would have been reasonably expected that
repeating Witter ’97’s process with other MDV strains would result in LTR
insertion at the same site as in RM1. Jones teaches how to determine the
presence and location of an LTR insertion in MDV (see Jones, at 2461-
2463). Accordingly, we find that it would have been within the level of
ordinary skill in the art to determine the presence and location of the LTR in
a recombinant MDV viral agent produced by Witter ‘97’s method.
Appellants introduce post-filing evidence that others have “attempted
to do just what the Examiner has suggested: to insert the LTRs into the
genome of Marek’s disease strain CVI-988 at the same location” as the RM1
strain (Appeal Br. 12). “However, despite their efforts, the authors reported
that the resultant transformants containing the inserted LTRs did not exhibit
enhanced replication. This failure clearly demonstrates that there would be
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