Appeal No. 2003-1805 Page 8
Application No. 09/079,892
obtained as a result of an electronic search of sequence databases. As seen from the
sequence search report dated December 14, 1999, U.S.-09-079-892-4.rng, pages 1-3
the polynucleotide sequence extending from nucleotide 99-2144 of SEQ ID NO:4 of this
application is 100% identical to the coding sequence set forth in Nishi ‘713. See, e.g.,
Figs. 2A-2F and SEQ ID NO:5 of Nishi ‘713.
The examiner has concluded that it would have been obvious to a person of
ordinary skill in the art to use any 20 contiguous nucleotides in the region of the
polynucleotide sequence described in Nishi ‘713 as a probe in either a hybridization
reaction or as part of a set of probes/primers in a PCR reaction to detect a target
polynucleotide. Once again, appellants do not dispute this aspect of the examiner’s
position. Indeed, Nishi suggests as much, stating:
The DNA encoding the protein or the partial peptide of the present
invention can be cloned either by PCR amplification by using synthetic
DNA primers having a partial nucleotide sequence of the DNA coding for
the protein or by hybridization using the DNA inserted in a suitable vector
and labeled DNA fragment or synthetic DNA coding for a part or full region
of the protein or the partial peptide of the present invention. The
hybridization can be carried out by the method described in Molecular
Cloning, 2nd (J. Sambrook et al., Cold Spring Harbor Lab. Press, 1989).
When a commercially available DNA library is used, the instructions given
in the accompanying manual can be followed.
Nishi ‘713, column 15, lines 54 through 65.
Where the appellants and the examiner part company in regard to the
obviousness rejection has to do with whether claim 25 on appeal is “directed only to
detecting the target polynucleotides, comprising the polynucleotides recited in
claim [] 7 . . .” (Appeal Brief, page 12) or whether claim 25 is inclusive of “detecting any
target polynucleotide which hybridizes to probes generated from the sequence of
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