Appeal No. 2003-1817 Page 7
Application No. 09/501,714
results in a negative result reads directly upon claim 54. Thus, the examiner’s rejection
can be sustained on this basis.
Second, we do not read claim 54 to be limited to only detecting the target
polynucleotides comprising the polynucleotides recited in claim 52. Once a probe
comprising at least 16 contiguous nucleotides is constructed based upon the
polynucleotide sequence described in Hillier accession N933160, the use of that probe
in a hybridization method will result in the hybridization complex being formed if the
probe hybridizes to any polynucleotide sequence in the sample under the hybridization
conditions used. Thus, an appropriately constructed probe based upon the
polynucleotide sequence described in Hillier Accession No. N933160 will hybridize to a
polynucleotide sequence such as that of Hillier accession N933160, that of SEQ ID
NO:2 of this application or any other polynucleotide sequence having sufficient
complementarity given the hybridization conditions used.
The examiner’s obviousness rejection is affirmed.
3. Obviousness-type double patenting rejections
Appellants have acquiesced in the merits of these rejections by offering to file
appropriate terminal disclaimers. Appeal Brief, page 21. Accordingly the double
patenting rejections are affirmed.
New Ground of Rejection Under 37 CFR § 1.196(b)
Claims 55 and 56 are rejected under 35 U.S.C. § 103(a). Hillier accession
N933160 is relied upon as evidence of obviousness.
As explained above, we agreed with the examiner’s conclusion that the subject
matter of claim 54 would have been obvious to one of ordinary skill in the art on the
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