Appeal No. 2006-0227 Page 5
Application No. 10/121,264
is deposited genomic DNA comprising more than one chromosome from a “vertebrate,
invertebrate, plant, and prokaryotic” individual that belongs to “any group of individuals.”
When we give claim 40 its broadest reasonable interpretation consistent with the
specification, we interpret it to be directed to a device comprising an object onto which
genetic material can be deposited and a layer of a substance that can transport genetic
material when the substance is moved, where the layer has deposited on or in it, at two
separate positions, at least two chromosomes from the genomic DNA of any organism.
2. Anticipation
The examiner rejected claim 40 under 35 U.S.C. § 102(b) as anticipated by
Chu.1 (Since the present application was filed in 2002 and Chu issued in 2004, the
examiner’s citation of 35 U.S.C. § 102(b) appears to be a mistake. However, the
application that issued as the Chu patent was filed in 1998, so Chu appears to qualify
as prior art under 35 U.S.C. § 102(e). Appellants have not disputed that Chu is prior
art.)
The examiner reasoned that
Chu discloses a device comprising a substrate (tray)[,] a transfer agent
layer (slide) and a first genetic material position and a second genetic
material position . . . comprising more than one chromosome from at least
one individual within a defined population (chromosome spread whereby
the chromosomes are removed from the cells[;] i.e.[,] purified) and wherein
the first material position is separate from the second material position
(i.e.[,] different wells) (Column 32, line 35-Column 34, line 14).
Examiner’s Answer, pages 5-6.
We agree with the examiner that Chu’s Example 9 anticipates instant claim 40.
Chu states that “[c]hromosomes can be examined for gross abnormalities such as
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