Appeal No. 2004-0329 Page 13
Application No. 09/251,953
desired level of GMO contamination.1 Thus, one of ordinary skill in the art would
know and understand what level of purity is desired and what methods to use to
inspect and screen the crop to achieve the desired purity level.
Claims 31-34 and 52-55 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the above combination as further combined with Lander. This
rejection is also affirmed.
The ADM article and Poehlman are relied upon as above. As
acknowledged by the rejection, that combination fails to teach a certifying step
using DNA testing.
Lander is cited for teaching the use of “DNA technology to distinguish
among genotypes,” and that “1 or 0.01% can be achieved by increasing the
number of loci and/or individuals sampled.” Examiner’s Answer, page 6.
1 We also point the examiner’s and appellants’ attention to the discussion of the
Lander reference, infra, as further support and evidence that one of ordinary skill
would understand that levels of GMO contamination of 5% or less; 1% or less;
0.1% or less; or 0.01% or less can be detected and achieved. In the event of
further prosecution, the examiner may wish to consider the applicability of
Lander to claims containing an express limitation of a GMO contamination level
of 0.5% or less.
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