Appeal No. 1997-3600
Application No. 08/300,447
invention is patentable, resort to speculation, unfounded assumptions or hindsight
reconstruction to supply deficiencies in its factual basis.” In re Warner, 379 F.2d
1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S. 1057
(1968).
On the record before us, we find no reasonable suggestion for combining the
teachings of the references relied upon by the examiner in a manner which would
have reasonably led one of ordinary skill in this art to arrive at the claimed invention.
On these facts the examiner has failed to provide the evidence necessary to support
a prima facie case of obviousness. Where the examiner fails to establish a prima
facie case, the rejection is improper and will be overturned. In re Fine, 837 F.2d
1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).
Accordingly, we reverse the examiner’s rejection of claims22-24, 29-35, 41
and 42 under 35 U.S.C. § 103 as being unpatentable over Wun in view of Zeffren.
With regard to the examiner’s rejection of claims 25-28 under 35 U.S.C.
§ 103 as being unpatentable over Wun in view of Zeffren as applied to claims 22-
24, 29-35, 41 and 42 and further in view of Chmielewska. The examiner relies
(Answer, page 6) on Chmielewska to teach “determination of tPA where samples
were mixed with plasminogen, incubated and the reaction was terminated by
adding an acidifying agent….”
However, as explained by appellants (Brief, page 17) that while
Chmielewska does teach PAI-1, Chmielewska does not involve a kinetic study, but
instead teaches a method in which standard curves are generated. According to
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