Appeal No. 2004-0329 Page 14
Application No. 09/251,953
The rejection concludes:
It would have been obvious to one of ordinary skill in the art at the
time of the invention to further modify the steps as disclosed in
ADM as modified by Poehlman by using DNA testing
(fingerprinting) as disclosed by Lander in the certifying step e) so
as to increase the purity of the seed planted so as to increase yield
by not having off-types.
Id.
Appellants argue the Lander reference discloses DNA-based assays for
comparing loci from two different individuals for purposes of determining if those
two individuals are identical. See Appeal Brief, page 19. Appellants assert that
the reference “makes only a brief mention of determining the similarities and
differences among plants and makes no mention whatsoever of testing a sample
of seeds for contamination,” contending that as the Lander reference provides no
motivation to arrive at the combination, the examiner used improper hindsight in
making the combination. See id.
Appellants also argue that the teachings of Lander are not relevant to the
present claims, as it deals with “fingerprinting,” that is, “looking for similarities and
differences between individuals at hundreds or thousands of different genes,”
whereas, “the present invention deals with the presence or absence of particular
transgenes.” Reply Brief, page 6. Finally, appellants argue that that the
combination does not suggest a level of GMO contamination of 5% or less; 1%
or less; 0.1% or less; or 0.01% or less, wherein the above percentages are
based on DNA testing. See Appeal Brief, pages 17-19.
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