Appeal No. 2005-1169 Page 8
Application No. 09/900,063
litter size.” Id. Appellants conclude that “[t]he claim thereby recites a structural
feature which is common to all members of the genus (a specific region of a DNA
sequence) and additionally requires a particular function (causes a phenotypic
difference in litter size).” Id.
Appellants argue similarly for claim 36 that it contains “the necessary
structural feature by requiring that the alleles which are to be determined in said
animal are contained within the prolactin receptor gene of SEQ ID NO: 3,” and
“also requires a particular function in that the alleles to be determined are to be
associated with litter size.” Id.
First, as noted by the examiner, the specification fails to disclose a
representative number of species of polymorphisms present in SEQ ID NO: 3
that are associated with litter size. See Examiner’s Answer, page 10. At best,
appellants have disclosed three polymorphisms that may be correlated to litter
size, see Appeal Brief, page 13, whereas claims 1 and 36 encompass any
polymorphism that may be correlated to litter size.
Second, as also noted by the examiner, while the polymorphisms occur in
SEQ ID NO: 3, the polymorphisms that are disclosed by the specification to be
associated with litter size have no common structural element. See Examiner’s
Answer, pages 12-13.
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