Appeal No. 2006-0227 Page 15
Application No. 10/121,264
order to give Appellants a fair opportunity to respond. See In re Kronig, 539 F.2d 1300,
1302-03, 190 USPQ 425, 426-27 (CCPA 1976).
4. Obviousness based on Chu, Sabatini, and Kausch
The examiner also rejected claim 24 under 35 U.S.C. § 103 as obvious in view of
Chu, Sabatini, and Kausch. We will affirm this rejection as well, although our reasoning
differs from that of the examiner.
Claim 24 depends on claim 23 and adds the limitation that the transfer agent
layer comprises either sucrose or glucose. Thus, claim 24 is directed to a device
comprising an object that includes a region having a layer of a substance (comprising
either sucrose or glucose) that can transport genetic material when the substance is
moved, and that has deposited on it or in it at least two chromosomes.
Kausch discloses such a device in Example 1C (Chromosome Preparation):
[T]he microcentrifugation chambers were set up. The transparent cap of a
15 ml Falcon tube was filled with 1M sucrose at a pH of about 8.5 to a
depth of about 1 cm. The coverslip was dipped in the sucrose with the
prefixed side up and should rest on the raised central portion of the
chamber. There should be a few mm of sucrose above the coverslip. . . .
Cells were lysed in about 1% Nonidet P-40 (a detergent). . . . The lysate
was layered over the sucrose cushion in the chamber, and centrifuged.
Column 26, line 62, to column 27, line 9.
The device described by Kausch meets all the limitations of claim 24. The 1M
sucrose solution forms a pool that meets the specification’s definition of a “transfer
agent layer,” since it is a layer of “a substance onto or into which genetic material may
be deposited, which can transport the genetic material when the [substance] is moved.”
For example, if the 1M sucrose with chromosomal DNA layered on it were poured into a
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