Appeal No. 2001-1431
Application No. 07/968,553
does not diminish the requirement for actual evidence. That is, the
showing must be clear and particular.
In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed. Cir. 1999)
(citations omitted). The suggestion to combine prior art references must come
from the cited references, not from the application’s disclosure. See In re Dow
Chemical Co., 837 F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed. Cir. 1988).
In this case, the examiner has not adequately shown that those skilled in
the art would have been motivated to combine the teachings of the cited
references. The assay described by Ellis is directed at detecting the presence of
“auto blocking” antibodies (autoimmune antibodies that block cellular receptors)
by measuring the reduction in binding of a labeled ligand to immobilized receptor,
in the presence of serum containing auto blocking antibodies. Ellis describes the
use of positive and negative calibrators to aid in determining whether a given
assay result is positive for the presence of auto blocking antibodies. Ellis does
not suggest the need for such calibrators in other assays.
Schwartz is addressed to ensuring consistency in flow cytometry
measurements. See column 3, lines 19-30 (“It is therefore an object of the
present invention to provide a method for adjustment of a flow cytometer for
analysis of selected samples, . . . in a manner achieving reproduceability [sic] of
data which is independent of the specific instrument and time-frame of the data
measurement and of the compensation of the instrument.”). Schwartz does not
discuss use of positive or negative calibrators (i.e., samples corresponding to a
positive or negative measurement) in flow cytometry.
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