Hon'ble Shri. D.P.S. Parmar Technical Member (Patents) The appellant is aggrieved by the order of the respondent No.1 dated 22.06.2011 (Priority date 20.09.2003) wherein he refused patent application No.2407/DEL/NP/2006 relating to methods for enhancing stress tolerance in plants and methods thereof. This title was latter amended as A method of producing a transgenic plant with increased heat tolerance, salt tolerance, or drug tolerance.
2. The respondent has refused to grant patent as she found subject matter of claims lack inventive step in view of (i) Willimsky Gerald Journal of bacteriology .Vol174,No 20 ,1992,6326- 6335,(ii) WO 90/09447and US 5470971.(ii) Claims do not define any invention under section 2(1)(ja) of the Patents Act, 1970 as structure and function of cold shock protein was already known in cited prior art and it is obvious to person skilled in plant to make transgenic plant. (iii) It is mere application of already known cold shock protein in producing cold stress tolerant plant and tolerant to heat, salt and drought conditions, claims fall within the scope of Section 3(d) of the Patents Act, 1970. (iv) . She also found that it is not patentable under 3(j) as claims also include essential biological process of regeneration and selection, which includes growing of plant in specific stress condition. Lack of inventive step
3. The counsel for the appellant submitted as on the priority date of the subject application there were a number of eukaryotic, particularly plant stress related genes identified. A person skilled in the art would rather use these genes for production of stress tolerant plant rather than selecting a bacterial gene whose expression in plants will be all the more unpredictable. Thus the state of the art on the priority date of the subject application clearly taught away from methods to produce stress tolerant plants by incorporating bacterial genes whose function even in the bacterial system was not clear. Therefore, there was no reason for one of skill in the art to resort to a simpler system like bacteria for such genes.
4. The counsel for the appellant submitted that state of the art existing on the date of priority of the subject patent application provided no motivation to produce plants that are heat, salt or drought tolerant by incorporation of bacterial genes.
5. The counsel for the appellant submitted that state of the art taught that cold tolerance in plants is a quantitative trait under the control of many genes. The counsel cited the following passages from Guy (1999), JMMB Symposium Series Volume 2 (Annexure K): Running page
412 of the appeal book. "While in some systems there has been some success, most efforts to change tolerance by ectopic expression of one or two stress proteins has not been successful Such gene transfer efforts confirmed the long known fact that environmental stress tolerance of plants was a quantitative trait under the control of many genes.. ... " 'Both acquired thermotolerance, and most certainly, acclimation to cold are the consequence of the coordinate regulation of expression of many genes. "
6. The counsel for the appellant contended that the Role of Csp genes was not clearly known even in bacteria leave alone predicting that the same would induce drought, salt and temperature tolerance in plants.the cousel cited the following passage from Goldstein et aI. (1990) Proc. Natl. Acad. Sci. USA 87:283-287, 287 (Annexure I): at page 287 of the appeal book Athough there is as yet no direct evidence on the function of [cold-shock protein] CS7.4, preliminary data indicate that either CS7.4 or another activity similarly induced at low temperature may protect E.coli from damage due to ice crystal formation during freezing. Confirmation of the function of this protein obviously must await the mutational inactivation1of the gene. Obviously, much works needs to be done to elucidate the mode of regulation of the cspA gene as well as the function of the CS7.4 protein." And following passage from Brandi et al (1999) EMBO J 18(6), 1653-1659 (Annexure J)( running page 386 of the appeal book): "In spite of the extensive information available on the structure and properties of CspA, its role remains elusive and the expectation of a cold shock-specific function (e.g. antifreeze function) may have been misleading. "
7. According to the counsel the prior art taught that cold tolerance in plants is a quantitative trait under the control of many genes. therefore it teaches away in the art from the use of a single bacterial gene.the cousel cited following passage from Guy (1999), JMMB Symposium Series Volume 2 (Annexure K): Running page 412 of the appeal book "While in some systems there has been some success, most efforts to change tolerance by ectopic expression of one or two stress proteins has not been successful Such gene transfer efforts confirmed the long known fact that environmental stress tolerance of plants was a quantitative trait under the control of many genes.. ... " 'Both acquired thermotolerance, and most certainly, acclimation to cold are the consequence of the coordinate regulation of expression of many genes. " and submitted that in Thomashow, Plant Physiol. 118:1-7, 1998 a large number of "cold- responsive plant genes are Identified " that included the COR genes, LEA proteins, FAD8, blt4, hsp70, hsp90, mitogen-activated proteins kinases, calcium-dependent protein kinase, 14-3-3 proteins and AFP proteins that could have been pursued.
8. The counsel for the appellant contended that generating a Stress tolerant plant is highly unpredictable. The counsel cited following assage from Guy (1999), JMMB Symposium Series Volume 2 (Annexure K): Running page 404 of the appeal book "In some cases, these proteins have been ectopically expressed individually in other plants and the results have been largely disappointing with respect to altered stress response. " and following passage from Kaye et al (1998), Plant Physiol. Vol. 116 (Annexure L): Running page 431 of the appeal book "However, both of the proteins were expressed in tobacco at an apparently lower level than under low-temperature induction conditions in spinach. Tests designed to determine whether their expression conferred increased tolerance to low temperature stress indicated little overall benefit to tobacco. Freezing tolerance is considered to be a quantitative trait. "
9. The counsel for the appellant submitted that cold shock protein(s) Csp(s) or CSP(s) are proteins that have greater than 40% identity to E coli as CspA protein (SQ ID NO. 1) or Bacillus subtilisCspB as proteins(SQ ID NO. 2) . The present inventor found that placing genes encoding the cold stock proteins and proteins related to them, into plants and expressing them would increase cold, draught, heat, water and other abiotic stress tolerance of plant as well as fungal, viral and other biotic stress tolerance of plants. In the present invention a recombinant DNA molecule comprising DNA encoding a cold shock protein is put in the plant to express abiotic stress tolerance. Post filing data surprising results
10. The counsel for the appellant submitted that despite the appellants experimental validation through post filing data ("Surprising results of the subject application) to establish the superiority of the new products of the invention under conditions of heat, salt or drought tolerance as compared to the wild type plants respondent found that the claims at issue would have been obvious and the invention is new use of known substance under Section 3(d).
11. The counsel for the applicant argued that considering the teaching of the art at the time of the invention the role of cold shock proteins was not clear even in bacteria, leave alone in plants. The teaching away in the art from the use of a single stress protein in the production of stress tolerant plants. The teaching on unpredictability of generating stress tolerant plant and the presence of a number of plant stress tolerance genes. This would not motivate a person skilled in the art to transform plants with prokaryotic stress genes to obtain heat, drought or salt tolerant plants based solely on the merely speculative teachings of WO90/09447 and US 5470971 or the academic teachings of Willinsky et al.
12. Under the field of invention it is specifically stated that this invention relates to a method of increasing the biotic and abiotic stress tolerance of plants by expressing a cold shock protein (s) within the cell of said plant.
13. Twenty Claims as originally filed were relating to Claims 1-5 A recombinant DNA molecule Claim 6 An abiotic stress tolerant, transgenic plant that has been transformed with a DNA molecule that expresses a cold shock protein. Claim 7 -15 were for progeny, plant, crop plant , propagule, seed etc. Claim 16 A method of producing a transgenic plant comprising the steps of: a) inserting into the genome of plant cells a recombinant DNA molecule of claim 1 : b) obtaining transformed plant cell containing said recombinant DNA; c) regenerating plants from said plant cells; and d) selecting a plant for increased abiotic stress tolerance or increased root growth. Claim17 A stress tolerant plant produced by the method of claim 16. Claim 18 A method of claim 16 wherein said abiotic stress is selected from the group consisting of heat tolerance, salt tolerance, drought tolerance, and survival after cold shock. Claim 19 An isolated protein which (a) is at least 40% identical to at least one protein selected from the group consisting of SEQ ID NOS: 5, 7, 9, 29, 31, 33, 35, 37, 39, 41, 43, 53, 55, 57, 59, 61,63, and 65, (b) hybridizes under stringent conditions to a nucleic acid selected from the group consisting of SEQ ID NOs: 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, 64, 90, and 92. (c) has an amino acid sequence which is substantially identical to any of SEQ ID NOS: 5, 7, 9, 29, 31, 33, 35, 37, 39, 41, 43, 53, 55, 57, 59, 61,63, and 65. Claim 20 A field crop comprising at least 50% of plants germinated from a propagule comprising a prokaryotic cold shock protein.
14. During prosecution another set of amended 18 claims by filing form 13 were presented.[page 29 and 30 of paper book]. Claims as amended are reproduced below: We find Claim1 -3 A plant cell having a recombinant DNA inserted into its genome Claims 4-5 A plant having a recombinant DNA inserted into its genome its cell Claim 6-9 were method claims for manufacture of seed and production of crops Claims 10 -18 were for a cell, plant or method according to claims 1-9.
15. We find another set of amended claims 19 at page 282-285 of the paper book. Claims 1-3 A recombinant DNA molecule Claims 4-8 A transgenic plant cell Claim 9 - A method of producing a transgenic plant comprising the steps of: a) inserting into the genome of plant cells a recombinant DNA molecule of claim 1 : b) obtaining transformed plant cell containing said recombinant DNA; c) regenerating plants from said plant cells; and d) selecting a plant for increased abiotic stress tolerance or increased root growth.[identical to original claim16 except reference to claim1 is deleted here] Claim10. A method of claim 9 wherein said abiotic stress selected from heat tolerance or drought tolerance. [original Claim 18 amended] Claims 11 [original Claim 19 amended shown in bold.]. An isolated protein which (a) is at least 40% identical to at least one protein selected from the group consisting of SEQ ID NOS: 5, 7, 9, 29, 31, 33, 35, 37, 39, 41, 43, 53, 55, 57, 59, 61,63, and 65, (b) is encoded by a nucleic acid that hybridizes under stringent conditions to a nucleic acid selected from the group consisting of SEQ ID NOs: 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, 64, 90, and 92. or (c) has an amino acid sequence which is substantially identical to any of SEQ ID NOS: 5, 7, 9, 29, 31, 33, 35, 37, 39, 41, 43, 53, 55, 57, 59, 61,63, and or 65. Claim12 -19 method for manufacturing transgenic seeds.
16. We find another set of amended claims 5 at page 292 of the paper book.
1. A method of producing a transgenic plant comprising the steps of: (a) inserting into the genome of plant cells a recombinant DNA molecule comprising a DNA encoding a cold shock protein, wherein said DNA encoding said cold shock protein is operably linked to a promoter and operably linked to a 3' transcription termination DNA polynucleotide; (b) obtaining transformed plant cell containing said recombinant DNA; (c) regenerating plants from said plant cells; and (d) selecting a plant for increased heat tolerance, salt tolerance, or drought tolerance.
2. The method as claimed in claim 1 wherein said plant is selected for heat tolerance or drought tolerance.
3. The method as claimed in claim 1 or claim 2, wherein said cold shock protein is at least 40% identical to E.coli CspA or B, subtilis CspB across the entire length of E.coli CspA or B. subtilis CspB.
4. The method as claimed in claim 1 or claim 2, wherein said cold shock protein is at least 60% identical to E. coli CspA or B. subtilis CspB across the entire length of E. coli CspA or B. subtilis CspB.
5. The method as claimed in claim 1 or claim 2, wherein said cold shock protein is at least 70% identical to E. coli CspA or B. subtilis CspB across the entire length of E. coli CspA or B. subtilis CspB.
17. The claims 1-5 at issue in the present case are directed to a method of producing a transgenic plant comprising the steps of inserting into the genome of plant cells a recombinant DNA molecule. The appellant has given up all claims relating to recombinant DNA, plant cell, progeny, plant, crop plant , propagule, seed etc. [claims 1-15] and also claims 17 [transgenic plant ,19 [Isolated protein] and 20 [a field crop]
18. The amended claim 1 directed to a method of producing a transgenic plant comprising the steps of inserting into the genome of plant cells a recombinant DNA molecule. The DNA encoding said cold shock protein is required to be operably linked to a promoter and operably linked to a 3' transcription termination DNA polynucleotide. Obtaining transformed plant cells containing said recombinant DNA. Regenerating plants from said plant cells and selecting a plant with increased heat tolerance, salt tolerance, or drought tolerance therefrom. This claim requires that the DNA molecule has DNA encoding a cold shock protein which is at least 40% identical to E. coli CspA or B subtilis CspB across the entire length of E. coli CspA or B. subtilis CspB.
19. Cold shock proteins are defined in the specification as Csp(s) or CSP(s) are proteins that have greater than 40% identity to Escherichia Coli CspA protein (SEQ ID NO:1) or Bacillus subtilis Csp B protein (SEQ ID NO: 2). If we see D1.[WILLIMSKY] we find Bacillus subtilis Csp B protein (SEQ ID NO: 2) 100% identical to CspB bacillus subtilis inducible cold shock gene disclosed (Residue (1-67) [FIG3 and FIG 4] and characterised therein. It also disclose CS7.4 the gene for major cold shock (encoded by cspA).. [ page 6326 Cl.1 para2]. It also state Gene encoding CspB ,a protein similar to the E.coli cold stock protein CS7.4, was cloned ,sequenced and characterised. In the specification it is stated that CasA is the major cold shock protein from E.coli. (SEQ ID NO :1) CspA is also called Major cold shock protein 7.4 [page 25 line 5- 6]. It is admittedly known that there is homology of cold shock protein of present invention with already known CspA, CspB protein. [Para 2 page 4].
20. In Goldstein D2 WO90/09447 (abstract) we find that The major cold shock protein of E. coli, structural gene coding there for, promoter for the gene and for other proteins. DNA sequences which include the gene encoding the protein, the promoter and other functional elements. Constructs are disclosed. Transformed competent hosts; transgenic plants are contemplate. Also the invention provides various applications and methods in protein synthesis. If we see sequence of protein in claim 6 it is identical with SEQ ID NO:1 of the claimed invention. Example1 disclosed induction of cs7.4
21. Thus the invention claimed in claim 1 includes recombinant DNA of already known cold shock protein which is claimed to be used in production of transformed plant for expression of cold shock protein according to the method as claimed now.
22. It was previously known in Goldstein D2 WO90/09447 to use CspA, CspB protein of the cold shock domain (CspA, CspB protein a generic means) for expression of cold shock protein (a generic result) in E.coli, yeast cell, vertebrate cells, human cell Hela, Rat cell BLAB/c 3T3,NIH 3T3 and Rat embryo fiberblasts. It is further stated that it is understood other competent microorganism hosts (eukaryotic and prokaryotic) can be transformed genetically in accordance with the invention. It is disclosed that additional vectors and sources .including .yeast cloning vectors ,plant vectors ...[page 23 and 24 ]. Now it is selected by inventor that one CspA, CspB protein in particular (a specific means selected from the generic means) produce cold stress tolerant plant that is tolerant to heat, salt and drought conditions (a specific result) in plants. The appellants argument of unpredictability will not stand as absolute predictability is not a condicio sine qua non to a case of obviousness. It is sufficient that a person of ordinary skill would have found a degree of predictability which is reasonable. In D1 use for CspA, CspB protein of the cold shock domain in E.coli, yeast cell, vertebrate cells, human cell Hela, Rat cell BLAB/c 3T3,NIH 3T3 and Rat embryo fiberblasts was taught. In D2 use of CS7.4 in E.coli was taught. In D3 [Kando US 5470971] gene (and portions thereof) which are stressinducible e.g. by cold shock which encode useful proteins. The proteins contribute to confer thermo-tolerance and/or contribute to confer low temperature tolerance to organisms, like eukaryotes and prokaryotes.[Abstract] are disclosed. Further it is stated that Amongst the eukaryotes which are of particular interest are mammalian cell, plant or vegetable cells, cells of insects.and others to be subjected to low temperature shock in accordance in accordance with the invention.[ Col. 21 line 57-61]. It also disclosed Broadly the invention covers organisms especially eucaryotes ..or to transformed organism. It further state that In that connection it should be noted that cross stress and property(ies) are within the scope of the invention. A form of stress can induce a better tolerance to that condition or to a different condition. Illustratively herein, cold shock does not only cause improved tolerance to low temperature but cause thermo-tolerance.[ Col. 21 line 51 to 56].
23. There had been ample suggestion in D1 and D2 that the claimed method would work for plants with reasonable success. It is sufficient that a person of ordinary skill would have found a degree of predictability which is reasonable. It also stated in D3 that A form of stress can induce a better tolerance to that condition or to a different condition. Therefore, the argument of appellant relating to surprising results of the subject application in superiority of the new products of the invention under conditions of heat, salt or drought tolerance as compared to the wild type plants will not find favour as better tolerance is expected in results in view of D3. Therefore in view D1 Willimsky Gerald Journal of bacteriology .Vol174,No 20 ,1992,6326- 6335,(ii) WO 90/09447 (D2) and US 5470971 (D3) the claimed method is not inventive. When the structure and function of cold shock protein was already known in cited prior art and it is obvious to person skilled in plant to make transgenic plant which is heat or drought tolerance by inserting the recombinant DNA molecule its genome. The respondent therefore rightly concluded that the claimed invention is related to production of transgenic plant by transformation with admittedly known cold shock protein. Claims do not define any invention under section 2(1)(ja) of the Patents Act, 1970 as structure and function of cold shock protein was already known in cited prior art and it is obvious to person skilled in plant to make transgenic plant. We find no reason to differ. Section 3(d) new use of known substance
24. With regard to Section 3(d) of the Patents Act, the counsel of the appellant submitted that the claims of the instant application are not "use" claims but are directed to a method for producing a transgenic plant which shows heat tolerance, salt tolerance or drought tolerance. Further the method of the subject application does not constitute new use of a known process as it involves a new product which is a transgenic plant transformed with a prokaryotic cold stress gene that shows heat tolerance, salt tolerance or drought tolerance.
25. The counsel of the appellant submitted that there is sufficient data provided in the specification and well as through post filing data to establish the superiority of the new products of the invention under conditions of heat, salt or drought tolerance as compared to the wild type plants. Further WO 90/09447 (Goldstein et al.) did not actually provide transgenic plants with any traits along with the teachings of the specification that such plants with drought tolerance must be selected.
26. Where the means are known (CspA, CspB protein in this case) it cannot itself be claimed. It was previously known in Goldstein D2 WO90/09447 to use CspA, CspB protein of the cold shock domain (CspA, CspB protein a generic means) for expression of cold shock protein (a generic result) in E.coli, yeast cell, vertebrate cells, human cell Hela, Rat cell BLAB/c 3T3,NIH 3T3 and Rat embryo fiberblasts. But it was not previously used to achieve that specific results in plants. The selection of specific proteins from cold shock domain to achieve better result in plants contributes merely to a new use of such substance. Mere use of admittedly known substance is not permitted under Section 3(d).The argument of surprising result will not change the position as it will be still be a new use of known even if it produces better results.Therefore the respondent rightly observed that Thus invention is related to application of cold shock protein in production of plant which are heat, salt and drought tolerant, while cold tolerant property of cold shock protein are already known in prior art, which is new use/application of admittedly known substance and not allowed under Section 3(d) of the Patents Act, 1970. It is mere application of already known cold shock protein in producing cold stress tolerant plant and tolerant to heat, salt and drought conditions, claims fall within the scope of Section 3(d) of the Patents Act, 1970. We therefore confirm and concur with the findings of the respondent. Section 3(j) - An essentially biological process
27. Now we shall examine whether the claim1 fall within the scope of Section 3(j) of the Patents Act, 1970.
28. The counsel for appellant submitted that the claims of the subject application do not fall within the ambit of Section 3(j) of the Patents Act as they do not constitute an essentially biological process. The counsel submitted that
1. The method of the subject application involves substantial human intervention in the: steps of "inserting into the genome of plant cells a recombinant DNA molecule comprising a DNA encoding a. cold shock protein" and "obtaining transformed plant cell containing said recombinant DNA".
2. It is not possible to obtain the transgenic plants of the subject application through processes which occur in nature and which do not involve human intervention for inserting the recombinant DNA comprising a prokaryotic cold shock gene in to a plant and selecting for heat, drought and salt resistant plants
3. Even the selection step of the instant application does not involve "natural selection". Rather it is a step that completely involves human intervention.
4. With respect to the definition of essentially biological process, the Counsels of the Appellant submitted the following:
i. Decision of the Enlarged Board of Appeal in T 1242/06 which on page 71, point
3 reads as follows: "If however, such a process contains within the steps of sexual!y crossing and selecting an additional step of a technical nature, which step by itself introduces a trait into the genome or modifies a trait in the genome of the plant produced, so that the introduction or modification of that trait is not the result of mixing of the genes of the plants chosen for sexual crossing, then the process is not excluded from patentability under article 53(b) EPC."
ii. Directive 98/44/EC of the European Parliament and of the Council of 6th July 1998 on the legal protection of Biotechnological inventions, Article 2 (2): "A process for the production of plants or animals is essentially biological if it consists entirely of natural phenomena such as crossing or selection."
29. The present invention discloses a genetically-modified plant that is predisposed to certain characteristics relating to heat, salt or drought tolerance. The plant is modified by the introduction of known recombinant DNA into its genome, thereby causing the said predisposition. The specification also teaches how the known regeneration and screening technique can be used to screen the transformed plant with heat, salt or drought tolerance. The appellant has given up all claims relating to given up all claims relating to recombinant DNA, plant cell, progeny, plant, crop plant, propagule, seed etc. [claims 1-15] and also claims 17 [transgenic plant ,19 [Isolated protein] and 20 [a field crop]
30. Let us see amended Claim 1 [claim16 amended] . It relates to a method that requires several steps that together provide claimed solution. The method here is best considered as a series of individual steps. It is a method that includes an act of human intervention on a plant cell and producing in that plant cell some change. Therefore the respondent erred in finding this method as essentially biological process and excluded under Section 3(j).We set aside his findings to that extent.
31. This however would not make the subject invention patentable automatically in view of human intervention. When the claims relating to recombinant DNA, plant cell, progeny, plant, crop plant , propagule, seed etc. [claims 1-15] and also claims 17 [transgenic plant ,19 [Isolated protein] and 20 [a field crop] have been given up by the appellant, the claimed method is considered as a series of generic steps modified by the plant cell. What is unquestionably new in this case is the discovery of some additional effects due to expression of known cold shock protein in plants. By itself such discovery is merely a discovery of new property of known substance and not an invention. The claimed invention relates to method of production of transgenic plant which include step of transformation, regeneration and selection of transgenic plant from heat, salt or drought tolerance. We are not entirely convinced that the discovery of cold shock protein claimed was a step forward. This claim in real sense is use of known cold shock protein for expression in plant cell, then producing plants therefrom and selecting the plants which are heat, salt or drought tolerance. In the case like the present which does not involve a simple leap from prior art to the invention but rather entails a journey with many generic method steps (steps (b),(c)and (d) that are essentially biological) taken in sequence and we have found the invention is not involving inventive step, mere fact of human intervention would not change the position as we have otherwise found it not patentable in view of obviousness and new use of known substance. MP 36/2013 for Amendment
32. The Appellant filed a miscellaneous petition MP 36/2013 for submitting amendments to the claims rejected by the Patent Office. The claim amendments are reproduced below
1. A method of producing a transgenic plant comprising the steps of: (a) inserting into the genome of plant cells a recombinant DNA molecule comprising a DNA encoding a cold shock protein which is t least 40% identical to E. coli CspA or B. subtilis CspB across the entire length of E. coli CspA or B. subtilis CspB, wherein said DNA encoding said cold shock protein is operably linked to a promoter and operably linked to a 3' transcription termination DNA polynucleotide; (b) obtaining transformed plant cell containing said recombinant DNA; (c) regenerating plants from said plant cells; and (d) selecting a plant for increased heat tolerance, salt tolerance, or drought tolerance.
2. The method as claimed in claim 1 wherein said plant is selected for heat tolerance or drought tolerance.
3. The method as claimed in claim 1 or claim 2, wherein said cold shock protein is at least 40% identical to E.coli CspA or B, subtilis CspB across the entire length of E.coli CspA or B. subtilis CspB.
4. The method as claimed in claim 1 or claim 2, wherein said cold shock protein is at least 60% identical to E. coli CspA or B. subtilis CspB across the entire length of E. coli CspA or B. subtilis CspB.
5. The method as claimed in claim 1 or claim 2, wherein said cold shock protein is at least 70% identical to E. coli CspA or B. subtilis CspB across the entire length of E. coli CspA or B. subtilis CspB.
33. We do not find it necessary to use the discretion of the Board as the respondent has construed the invention in claim 1 as being cold shock protein which is at least 40% identical to E. coli CspA or B. subtilis CspB across the entire length of E. coli CspA or B. subtilis CspB which is now being proposed to define cold stock protein by way of merging claim 2 with claim
1. This Miscellaneous Petitions are accordingly dismissed.
34. We do not find any convincing reason to interfere with these findings relating to obviousness and Section 3(d) for the reasons stated above. The appeal therefore is dismissed. (D.P.S. Parmar) (Justice Prabha Sridevan) Technical Member Chairman (Disclaimer: This order is being published for present information and should not be taken as a certified copy issued by the Board.)
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