Appeal No. 2004-1770 Page 5
Application No. 09/895,050
fluid composition of a solid activator (e.g., tetrazole (see page 13, lines 16-17) in
acetonitrile (see page 21, lines 19-20)).
Baldeschwieler’s tetrazole solution meets the instant specification’s definition of a
“fluid composition of a solid activator” because the specification defines “solid activator”
by reference to whether the activator is solid at room temperature, not by reference to
whether it is in solution. See page 9. See also page 3 (“[T]he fluid composition [of solid
activator] may have less than 20% by weight of solid activator present, for example 3%
to 20% by weight.”) and page 15 (tetrazole is a suitable activator and acetonitrile is a
suitable solvent). Baldeschwieler also discloses that the apparatus deposits the
tetrazole onto the substrate before it deposits the phosphoramidite-derivatized
monomer. See page 13, lines 16-21 and claim 28.
However, as the examiner recognized, Baldeschwieler does not disclose the
claim limitation requiring the target drive pattern to instruct the deposition system to
“allow sufficient time [after the activator is applied] for evaporation to leave solid
activator” before the biomonomer is applied. The examiner cited Hirschbein as
suggesting this limitation. The examiner pointed to Example 2 of Hirschbein as
teaching a method comprising allowing sufficient time for solvent evaporation, and
Hirschbein’s guidance that “[t]he use of very dry reagents and solvents . . . allows the
use of less phosphitylating agent in the monomer syntheses and the generation of less
of the impurity.” See Examiner’s Answer, pages 3-4. The examiner concluded that the
combined references would have suggested the instantly claimed apparatus:
An ordinary practitioner would have been motivated to combine and
substitute a method wherein sufficient time is allowed for evaporation to
leave solid activator . . . in order to achieve the express advantages, as
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