Appeal No. 2001-1431
Application No. 07/968,553
We reverse all of the rejections.
Background
The specification discloses
a method for establishing and using a decision point in flow
cytometry wherein the decision point defines a point on the axis of
a fluorescence histogram for a fluorescent marker of interest such
that if the median channel number of cells stained with that
fluorescent marker is greater than the decision point then the
sample is said to be “positive” for the fluorescence marker used.
Page 1. The specification provides a working example that applies the disclosed
method to detecting cells positive for the marker HLA-B27. See pages 8-17.
Discussion
The examiner rejected all of the claims as obvious based on the
combination of Schwartz and Ellis, with McKenzie and the DAKO bulletin cited to
meet limitations of the dependent claims. Thus, all of the rejections rely on the
combination of Schwartz and Ellis.
The examiner states that “Schwartz teaches a method of calibrating a flow
cytometer using fluorescent microbeads, prior to analyzing cell samples.”
Examiner’s Answer, page 3. The examiner states that Schwartz’s calibration
method is intended “to achieve reproducible, repeatable results,” but “differs from
the instant invention in failing to teach using multiple known positive or negative
samples to determine a cut-off point in deciding whether a sample is positive or
negative for a marker of interest.” Id. at page 4.
argued the merits of the rejection. See the Appeal Brief, page 4. Thus, the omission of Ellis from
the statement of the rejection appears to have been an oversight and caused no confusion.
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