Appeal No. 2006-0258 Page 14
Application No. 09/755,747
In response appellant asserts (Brief, page 16), Stimpson “emphasize that
fluorescent-based systems are insensitive and therefore provides an alternative
optical wave guide system which improves sensitivity.” According to appellant
(17), the optical wave guide system taught by Stimpson is completely different
than using a fluorescent-based system and therefore a person of ordinary skill in
the art would not have been motivated to modify Stimpson for use with a
fluorescent dye like that taught by Wittwer. In addition, appellant asserts (id.),
Wittwer does not suggest or employ the SYBR Green dye in a “solid-phase
hybridization, which is the subject of the present claims.” In support of this
assertion appellant relies on the Baldeschwieler Declaration and the Kwok
Declaration.
Initially, we note that Baldeschwieler declares that he was the senior
investigator and coauthor of Stimpson. Baldeschwieler Declaration, paragraph 1.
In this regard, Baldeschwieler declares (Baldeschwieler Declaration, paragraph
2),
Both before and after the publication of Stimpson . . ., one skilled in
the art would not expect the DNA binding capacity of any of the
stable and common 2-D surfaces and chemistries to yield
sufficiently strong fluorescent signals sufficiently ‘instantly’
(sub0second0 in f fluorescence based assay method to allow for
dynamic tracking of signal changes in real-time, when applying
practically useful rates of heating. One skilled in the art would,
therefore, most rationally turn to 3-D (gel-type) arrays to solve this
widely recognized problem, since the considerable 3rd dimension
provides far greater capacity and scope for DNA binding and
manipulation.
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