Appeal 2007-1627
Application 09/870,009
is embedded in a portion other than said gene portion and
comprises source identification information of said
predetermined gene.
(Answer 7.)
Similarly, the Examiner reasons that Arnot discloses
genomic DNA including the CS gene of Plasmodium
falciparum . . . which represents DNA including a
predetermined gene, . . . along with the 5’ flanking region
wherein the flanking region represents a portion which is other
than the gene portion. . . . Figure 1 shows two types of tandem
repeat primers with TAG sequences bound to the genomic
sequence. . . . [T]he primers represent not naturally occurring
nucleotide sequences and the flanking primer represents a
sequence embedded in portion other than said gene portion
which identifies source of predetermined gene.
(Id. at 9-10.)
Appellants argue that “nowhere does Lizardi teach or suggest DNA
that includes the gene for Huntington’s chorea and the OCP [open-circle
probe]. Instead, Lizardi teaches that the OCP may be used to replicate a
target sequence to detect a gene for Huntington’s chorea in a sample
mixture” (Appeal Br. 13). With regard to Arnot, Appellants argue that
“Arnot does not teach or suggest a nucleotide sequence which is not
naturally occurring in said DNA and which is embedded in said portion
which is other than said gene portion, and comprises source identification
information which identifies a source of said predetermined gene in said
gene portion” (id. at 27).
We agree with Appellants that the Examiner has not adequately
shown that either Lizardi or Arnot teaches all of the limitations of the
claims. Claim 5, for example, is directed to DNA that comprises a gene
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