Appeal No. 2004-1967 Page 10
Application No. 09/027,439
Claims 55-58 are directed to a probe comprising or consisting of a fragment of
SEQ ID NO: 3, 4, 5 or 6; an RNA equivalent of the fragment of SEQ ID NO: 3, 4, 5 or 6;
or a complement of the fragment of SEQ ID NO: 3, 4, 5 or 6; wherein the probe “targets”
Shigella flexneri, S. sonnei, S. dysenteriae or S. boydii. As explained in the
specification, targeting probes are “complementary to areas of rRNA or rDNA having
species-specific nucleotides or genus-specific nucleotides” and are capable of
“detecting and discriminating . . . the presence of rRNA or rDNA molecules of Shigella
species and E. coli.” Specification, page 13. Hogan’s probes may be the same length
as the claimed probes, but they hybridize with nucleic acid from E. coli, S. boydii, S.
flexneri, and S. sonnei (see Table 54 of Hogan), thus, they are not capable of
distinguishing between individual species of Shigella. That is, neither of Hogan’s probes
is capable of targeting and discriminating between individual species of Shigella, as
required by the claims. We see no basis for the examiner’s assertion that “‘targets’ . . .
is broadly interpreted to encompass probes which will hybridize to or detect species of
Shigella.” Answer, page 8.
The rejection of claims 47, 48, 53 and 55-58 under 35 U.S.C. § 102 (a) and (b)
as anticipated by Hogan is reversed.
IV. Anticipation by Genbank Accession No. X96964 or X80726
Claims 47, 48, 53 and 55-58 stand rejected under 35 U.S.C.§ 102 (a) as
anticipated by Genbank Accession No. X96964 or X80726, both of which set forth DNA
sequences described as encoding the S. sonnei 16S ribosomal RNA. It may be, as the
examiner asserts, that “the complements of the accession numbers are [ ] ‘substantially
complementary’ to [SEQ ID NO: 4] and would be capable of hybridizing to [SEQ ID NO:
4] under the recited conditions.” Answer, page 11. Nevertheless, SEQ ID NO: 4 is
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007