Appeal No. 1999-2814
Application No. 08/990,539
Second, the examiner relies on Bannwarth’s statement that “it should be
possible to synthesize analog complexes showing different emission spectra and
use them in those sequencing procedures where four different dyes are
necessary,” as evidence that those skilled in the art would have been motivated
to use Terpetschnig’s osmium-containing complex as a label for DNA
sequencing. The examiner, however, cites no evidence showing that those
skilled in the art would have considered Terpetschnig’s osmium -containing
complex to be an “analog” of Bannwarth’s ruthenium-containing complex. The
fluorescent metal-ligand complexes of the two references contain different metals
and different ligands complexed to the metal. Compare the structure shown in
Bannwarth’s Figure 1 with that of Terpetschnig’s Scheme 1. The examiner has
cited no evidence supporting his position that those of skill in the art would
consider the two compounds to be “analogs.”
Nor has he provided evidence that Terpetschnig’s fluorescent metal-ligand
complex has an emission spectrum that would lead those skilled in the art to
combine it with Bannwarth’s fluorescent metal-ligand complex. There is no
evidence of record, for example, that the two fluorescent labels emit light of
different wavelengths. Terpetschnig compares the emission spectra of an
osmium-containing complex and a ruthenium-containing complex (see Figure 2),
but the ruthenium-containing complex shown is different from that of Bannwarth.
The record does not indicate the emission spectrum of Bannwarth’s ruthenium -
containing complex.
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