Appeal No. 94-2788
Application 07/912,408
In our view, Edberg describes the two steps required by claim 7 on appeal. First, a
bacterial strain (sample) is cultured in Tripticase soy broth. Subsequently, that culture is
centrifuged, resulting in pelleted material, i.e., dense, centrifuged material. Consequently,
Edberg is an anticipation of the method of claim 7. As set forth in In re May, 574 F.2d
1082, 1089, 197 USPQ 601, 607 (CCPA 1978), anticipation is the epitome of
obviousness. Thus, our determination that Edberg is an anticipatory reference in regard to
the subject matter of claim 7 does not constitute a new ground of rejection.
The decision of the examiner is affirmed.
Other Issues
If prosecution is resumed on this subject matter in a continuing application, we urge
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the examiner to carefully review the ACCUPROBE brochure submitted with the
Information Disclosure Statement of August 14, 1992. The form PTO-1449 which
accompanied that Information Disclosure Statement indicates that the ACCUPROBE™
was published in 1990. However, the brochure contains the date February 15, 1992 on its
last page as well as a copyright notice dated 1992. Regardless of which publication date
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is correct, it appears that the ACCUPROBE brochure is prior art to the present claims.
See also claim 6 which requires use of the test sold under the trademark ACCUPROBE.
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