Appeal No. 2004-0329 Page 15
Application No. 09/251,953
As noted by the rejection, Lander talks about the use of DNA in
identification. The reference teaches that in using DNA identification methods, a
very small handful of sites of variation are chosen, and that enough sites of
variation are chosen in order to have enough markers of difference. And
although, as noted by appellants, the reference is drawn primarily to the use of
DNA identification methods, the reference teaches that you can perform DNA
fingerprinting on plants, such as corn, so that one can prove ownership of the
variety, which was not easily done before the use of DNA identification methods.
Thus, it would have been obvious to one of ordinary skill in the art at the time of
invention to use DNA identification techniques to ensure that the non-genetically
modified seed has not been contaminated with genetically modified seed.
With respect to appellants’ argument that the teachings of Lander are not
relevant to the present claims, as it deals with “fingerprinting,” whereas the
present invention deals with the presence or absence of particular transgenes,
the claims merely require “obtaining DNA test results,” claim 31, and thus do not
exclude the DNA fingerprinting methods of Lander. Moreover, Lander teaches
that one chooses sites of variation, and one of ordinary skill would understand
that the greatest site of variation would occur at the site of a possible transgene.
In addition, because Lander teaches that DNA evidence, in principle, is rapidly
becoming an irrefutable proof of identification, one of ordinary skill in the art
would expect that GMO contamination of 5% or less; 1% or less; 0.1% or less; or
0.01% or less, wherein the above percentages are based on DNA testing, could
be detected.
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