Appeal No. 2006-3006 Page 6
Application No. 10/123,713
Hybridization is performed by contacting the mixture of amplified RNAs
[prepared by the method at col. 65, l. 5 to col. 66, l. 10], under a cover slip,
with the surface of a glass slide containing three separate dots of 2x1011
molecules of three different covalently bound 31-mer oligonucleotides (A, B,
C) . . . . The last 16 bases of each oligonucleotide are complementary to a
specific segment (4 bases+8 bases+4 bases), centered on the 8-base gap
sequence, of each of the possible amplified RNAs generated from tag
sequences A, B, or C. Hybridization is carried out for 90 minutes at 37°C.
The glass slide is washed once with 2xSSPE . . . , then washed twice with
2xSSC . . . , and then incubated with fluoresceinated avidin (5 µg/ml) in
2xSSC for 20 minutes at 30°C. The slide is washed 3 times with 2xSSC and
the surface-bound fluorescence is imaged at 530 nm using a Molecular
Dynamics Fluorimager to determine if any of tag sequences A or B or C was
amplified.
Col. 66, ll. 14-31 (emphasis added).
Thus, contrary to Appellants’ argument, Lizardi utilizes a flat top surface
array to fluorescently label and detected fluorescently labeled array members.
Example 5 is therefore not “logically consistent only with a well plate” as they
allege. Reply Br. 2: 7. Moreover, as indicated at col. 66, ll. 14-31 (quoted above),
the assay does not “result in a completely uniform test result … devoid of
information” as Appellants assert. Br. 6: 8-9.
We also find Appellants’ argument deficient because the Examiner has not
relied on Lizardi for its teaching of an assay method, but for its description of
arrays with different members. Answer 3: 17-23.
Appellants’ challenge the Examiner’s finding that both Bobrow and Lizardi
describe arrays of spatially separated array members as required by claim 1.
Br. 6: 10-13. Appellants rely on Fig. 29A to refute the Examiner’s findings,
asserting that it depicts an antigen, “not an array.” Br. 5. We find this argument
disingenuous. Fig. 29A is a depiction of a single spot in an array of spatially
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