Appeal 2007-1627
Application 09/870,009
We agree with the Examiner that claim 5 reads on naturally occurring
DNA. Darnell1 provides a diagram of a retrovirus integrated into cellular
DNA (Darnell 973, Figure 24-13). The retroviral DNA includes a gene
portion (the gag, pol, and env genes) and a portion other than the gene
portion (the long terminal repeat (LTR)). All of the viral sequences are “not
naturally occurring” in the chromosomal DNA of the virus-infected host.
Thus, the cellular chromosomal DNA with integrated provirus
comprises a
• “gene portion including a predetermined gene” (the viral gag, pol,
and/or env gene);
• a “portion which is other than said gene portion” (the LTR); and
• a “nucleotide sequence which is not naturally occurring in said
DNA which is embedded in said portion which is other than said gene
portion” (any of the viral LTR sequence).
Finally, the embedded viral sequence “comprises source identification
information which identifies a source of said predetermined gene in said
gene portion.” That is, the viral LTR sequences are different from the host
chromosomal sequence and differ from one retrovirus to another. Thus, for
example, an integrated HIV provirus comprises LTR sequences that identify
the source of the rest of the proviral DNA (including the gag, pol, and env
genes) as the human immunodeficiency virus. We agree with the Examiner
that claim 5 reads on a retrovirus integrated into a host cell’s genomic DNA,
and therefore encompasses nonstatutory subject matter.
1 Darnell et al., “Molecular Cell Biology,” 2nd edition, Scientific American
Books, 1990, pp. 971-975 (copy attached).
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