Appeal No. 1999-1423
Application 08/261,639
In considering the propriety of a possible rejection of the claims under 35 U.S.C.
§ 103 in view of Tzeng and Chin, the examiner should note that the appellant raises an
argument in the Brief that Tzeng teaches that it is possible that the complex formed by
the labeled antigen and the analyte antibody may be insoluble. Thus, one of skill in the
art would not have a reasonable expectation of success that the claimed glycoprotein
antibody complex would migrate properly. Brief, page 16. If the examiner should
decide a rejection of the claims over Tzeng in view of Chin is appropriate, the examiner
should address the question of whether there is a reasonable expectation of success
provided by the references that the “first glycoprotein is capable of moving from the first
matrix to the second matrix and to said point spatially separated from the first matrix
after application of the sample to the first zone”, in view of the disclosure of Tzeng.
The examiner should consider whether Tzeng merely discloses a possibility of
insolubility and agglutination problems and whether Tzeng additionally discloses
methods of addressing these problems. See, for example, Tzeng, page 18, lines 24-
30.
CONCLUSION
The rejections of Claims 48 and 50-60 under 35 U.S.C. § 103 over Tzeng and
Berry; Claims 48 and 49 under 35 U.S.C. § 103 over Tzeng and Berry in further view of
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