Appeal No. 1995-2839
Application 08/062,023
specific for the intended target sequence (not base-pairing to other
regions within the template or to other templates), and not anneal to
itself. The critical component in the search for oligonucleotides
[primers] which would optimally meet all three of these criteria is the
algorithm used for determination of the duplex dissociation
temperature (T ). An algorithm which is commonly used is that of
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Suggs et al. (1981) where T calculation is based on the number of
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AT and GC pairs.
* * *
Preference should be given to a random base sequence
distribution with a [sic, an] average GC-content and a low 5' AT 3' and
5’ TA 3' sequences content, the presence of guanosine or cytosine at
the 3' ( and 5') end, the absence of primer complementarity and
secondary structure, and a calculated melting temperature about
60EC by Suggs algorithm and 85EC by Freier-Breslauer algorithm
(Freier et al., 1986) [Vandenvelde, p. 225, last para. - p. 226, last
para.].
In turning to the specification, we find that the appellants have employed a method
of determining the T of the primers which is not disclosed by Vandenvelde and which,
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consequently, results in a calculated melting temperature which differs from those taught by
Vandenvelde. Specification, pp. 11-13. We do not find that the examiner has made any
attempt, on this record, to make a factual inquiry with respect to these differences and to
determine whether the T of the claimed primers is the same as, or an obvious variant of,
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the T of the primers taught by Vandenvelde. Thus, we find that the examiner has not
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established, through the use of factual evidence, or sound scientific reasoning, that the
claimed invention would have been obvious to those of ordinary skill in the art at the time
the application was filed. A conclusion of obviousness must be based on fact and not on
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