Appeal No. 1997-3600
Application No. 08/300,447
appellants “Chmielewska also does not suggest the many advantages of using
kinetics compared with the standard curve methodology to evaluate tPA activity or
PAI-1 concentration in a sample.” As set forth in Ecolochem Inc. v. Southern
California Edison, 227, F.3d 1361, 1375, 56 USPQ2d 1065, 1075 (CAFC 2000)
the:
“[S]uggestion to combine may be found in explicit or implicit teachings
within the references themselves, from the ordinary knowledge of
those skilled in the art, or from the nature of the problem to be solved.”
… However, there still must be evidence that “a skilled artisan,
confronted with the same problems as the inventor and with no
knowledge of the claimed invention, would select the elements from
the cited prior art references for combination in the manner claimed.”
[Citations omitted].
On this record, we are compelled to agree with appellants (Brief, page 17)
that “Chmielewska does not cure the deficiencies of … [Wun] and Zeffren.” We
again, 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 at 1074, 5
USPQ2d at 1598.
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