Appeal No. 94-2788
Application 07/912,408
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We direct the examiner’s attention to the ACCUPROBE brochure since a review
of the specification of this application indicates that the present invention is an
improvement over that procedure in that the sample obtained from an enrichment broth is
pelleted. The hybridization confirmation test which is required by certain of the claims on
appeal is taught by the brochure. As set forth in the “SAMPLE COLLECTION AND
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PREPARATION” section of the ACCUPROBE brochure, the sample used in that
procedure may be obtained from two sources. First, the sample may be obtained from a
solid growth media. Second, the sample may be obtained directly from a broth culture.
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The ACCUPROBE brochure does not appear in and of itself to teach or suggest the step
of pelletizing the sample obtained from the broth culture. However, as set forth above,
Edberg teaches that in this art area samples may be obtained either from a solid growth
media or from dense, centrifuged material obtained from a culture broth.
As a separate matter, the examiner should consider the propriety of using
trademarks in the claims as in claim 6. It is not clear whether appellants intend claim 6 to
be limited to using only test kits sold under the trademark or whether the use of the
trademark is meant to be exemplary.
The decision of the examiner is affirmed.
No time period for taking any subsequent action in connection with this appeal may
be extended under 37 CFR § 1.136(a).
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