Appeal No. 95-3606
Application 07/827,691
11, 15, 27, 6, 9, 34, and 35 are identical in scope to the
materials combined to form the kits of Claims 42 and 29 to 33.
We hold that the scope of materials employed to perform the
methods appellants claim is not commensurate with the scope of
materials combined to form the kits appellants claim.
Specifically, method step b) of Claim 41 reads in relevant
part (emphasis added):
b) amplifying a nucleic acid in said nucleic acid
sample by performing a polymerase chain reaction in a
reaction mixture that is substantially free of GTP and
dGTP . . . .
In contrast, kit component c) of Claim 42 is (emphasis added):
c) a PCR reaction mixture which is substantially
free of added GTP or dGTP.
Thus, while the PCR reaction mixture of the method of Claim 41
must be “substantially free” of both GTP and dGTP, the
reaction mixture included in the kit of Claim 42 need not be
substantially free of both GTP and dGTP and can be used in
methods outside the scope of Claim 41, which, though
nonpreferred, applicants nevertheless regard as their
invention. See applicants’ specification (Spec.), page 19,
lines 12-15; emphasis added):
In addition to using an analogue of guanosine, it is
further preferred that the method of the present
invention
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