Appeal 2007-1627
Application 09/870,009
Appellants argue that the “nucleotide sequence added to a portion of
DNA is not just any old nucleotide sequence, but instead is a nucleotide
sequence that is ‘not naturally occurring’” (Reply Br. 2). As discussed
above, however, viral DNA is not naturally occurring in a host cell’s
chromosomal DNA; “naturally occurring” human DNA, for example, does
not include the HIV gag, pol, and env genes.
Appellants argue, however, that the claim language requires human
intervention:
[T]he nucleotide sequence includes [“]source identification
information”. . . . Appellant submits that this certainly implies
some human intervention. That is, without human intervention
the [“]source” of any genetic information in a gene portion is
not an issue.
Further, the source identification information “identifies” a
source of the genetic information in the gene portion.
Appellant again submits that this implies some human
intervention. That is, the source identification information is
not likely intended for identifying genetic information without
at least some human intervention . . . .
Further, claim 5 defines DNA having a nucleotide sequence
which is “embedded in” a portion of the DNA. . . . [T]he
claimed DNA in which a nucleotide sequence has been
embedded inherently requires human intervention and is by
definition not naturally-occurring.
(Reply Br. 2-3.)
We disagree with Appellants’ interpretation of the claim language.
As shown by Darnell, DNAs have “sources” and sequences that identify
those sources even without human intervention. Darnell also shows that
DNAs from different sources (e.g., human and viral) can be mixed, and one
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