Appeal No. 2003-1817 Page 6
Application No. 09/501,714
specifically hybridize to the target polynucleotide, if present, forming a hybridization
complex. The presence or absence of the hybridization complex is an indication as to
whether the sample contained the target polynucleotide.
The examiner has determined without dispute by appellants that Hillier accession
N933160 describes a polynucleotide that has 99.2% identity to nucleotides 817-1298 of
SEQ ID NO:2 of claim 52. Examiner’s Answer, page 8. The examiner has concluded
that it would have been obvious to a person of ordinary skill in the art to use any 16
contiguous nucleotides in the region of the polynucleotide sequence described in Hillier
accession N933160 as a probe in a hybridization reaction to detect a target
polynucleotide. Id., page 9.
Appellants argue that “claim [54] is directed to a method of detecting a target
nucleotide having the sequence of a polynucleotide of claim 52” and that “[n]one of the
applied art provides any description or recognition of a target polynucleotide having a
sequence as set forth in claim 52.” Appeal Brief, page 20.
Appellants’ argument does not take into account that claim 54 explicitly reads
upon a negative result, i.e., the probe comprising at least 16 contiguous nucleotides will
not hybridize to any nucleotide sequence in the sample. This is seen in that claim 54 b)
includes detecting the absence of a hybridization complex. Since appellants have not
contravened the basic premise of the examiner’s obviousness rejection, i.e., it would
have been obvious to one of ordinary skill in the art to use a probe comprising at least
16 contiguous nucleotides based upon the polynucleotide sequence described in Hillier
accession N933160 in a hybridization method, the performance of such a method that
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