Appeal No. 2006-0258 Page 15
Application No. 09/755,747
According to Baldeschwieler (Baldeschwieler Declaration, paragraph 3), these
“known limitations of solid surface fluorescence assays . . . are repeated[ly]
emphasized in the Introduction, Results, and Discussion sections of
Stimpson. . . .” Similarly, Kwok explains that “[t]he methods [of Wittwer] involve
the liquid phase hybridization of amplified DNA strands either with each other or
with oligonucleotide probes. None of these methods would lead a worker in the
field to the expectation that allelic discrimination could be achieved . . . on a solid
surface . . . .”
Upon consideration of record, we find Stimpson teaches (page 6379,
column 2), “[b]ecause the amount of fluorescent label on the surface of a chip is
quite low, the time required to scan the array is on the order of 1 min.” As we
understand this statement, if a fluorescent dye is used (as is required by
appellant’s claimed invention) for every incremental increase in temperature 1
min. would be required to scan the array for fluorescence. In our opinion this is
contrary to the requirement in appellant’s claim that the method comprises a
steady and progress adjustment of temperature at a rate of between 0.01 to 1ºC
per second; and continually measuring an output signal indicative of interaction
of the dye with duplex formed . . . .” To the contrary, as we understand
Stimpson, the temperature would be adjusted and then it would take 1 min. for
the chip to be scanned. In our opinion, this is contrary to the requirements of
appellant’s claimed invention. See e.g., Stimpson (id.), “[m]elting curves could
provide an additional dimension to the system and allow differentiation of closely
related sequences. . . . However, if 1 min is required to read/wash a DNA chip,
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