Appeal No. 1999-1266
Application No. 08/859,472
quencher molecule substantially quenches the fluorescence of the fluorescer molecule
whenever the oligonucleotide probe is in a single stranded state and such that the
fluorescer is substantially unquenched when the oligonucleotide is in a double-stranded
state. In addition, the claim requires that the 3' end of the probe is rendered impervious to
the 5'->3' extension activity of a polymerase. The combination is subjected to thermal
cycling sufficient to amplify the target nucleic acid sequence specified by the PCR
reagents.
The rejection under 35 U.S.C. § 103
In reaching our decision in this appeal, we have given careful consideration to the
appellant’s specification and claims and to the respective positions articulated by the
appellant and the examiner. We make reference to the Examiner's Answer of July 17, 1998
(Paper No. 17) for the examiner's reasoning in support of the rejection and to the appellant's
Appeal Brief filed June 10, 1998 (Paper No. 15) for the appellant’s arguments thereagainst.
Obviousness is a legal conclusion based on the underlying facts. Graham v. John
Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966); Continental Can Co. USA, Inc.
v. Monsanto Co., 948 F.2d 1264, 1270, 20 USPQ2d 1746, 1750 (Fed. Cir. 1991); Panduit
Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1566-68, 1 USPQ2d 1593, 1595-97 (Fed. Cir.
1987). Here, the dispositive question is whether it would have been obvious to one of ordinary
skill in this art at the time of the invention to carry out a PCR reaction using at least two PCR
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