Appeal 2007-2363
Application 10/253,967
Guo teaches further that the variant target “can include a substitution,
an insertion, a deletion, and a rearrangement of oligonucleotide nucleic acid
relative to the target.” (Col. 4, ll. 41-46.) Moreover, according to Guo, the
insertion or deletion can be as little as one nucleotide, with no upper limit
(col. 4, ll. 8-11).
Thus, Guo reads on claim 1 when the variant, i.e., the true mismatch
(pointed symbol) is an insertion of additional nucleotides in the target
sequence. The portions of the target flanking the insertion read on “a first
target region characteristic of said target nucleic acid sequence,” and “a
second target region characteristic of the target nucleic acid sequence.” The
insertion then reads on the “intervening sequence between the first and
second target regions on the target nucleic acid strand.” Moreover, claim 1
recites “wherein the first and second probe regions on the diagnostic probe
may be separated by a spacer region of nucleic acid,” and thus does not
require that the probe have a spacer.
We therefore find that Guo teaches all of the limitations of claim 1,
and the rejection is affirmed as to that claim, as well as to claims 2-8, and to
claim 20 to the extent it depends on claim 1, as those claims stand or fall
with claim 1.
As to claim 1, Appellants argue that the claims “recite polynucleic
acid hybridization probes comprising two probing regions directed against a
target nucleic acid having two target regions. In contrast, Guo is directed to
a hybridization probe having a single probing region directed against a
target nucleic acid having a single target region.” (Br. 8 (emphasis in
original).)
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