Appeal No. 2001-2410 Page 9
Application No. 08/914,700
pore size limitation recited in the instant claims. The examiner therefore has not
met her burden of showing that Hossom inherently meets that limitation of the
claims.
Nor has the examiner pointed to any disclosure in the secondary
references that would have suggested the pore size limitation in the claims. The
examiner relied on Leuvering and the other secondary references only to meet
the limitation requiring a colloidal gold-labeled detector substance (Leuvering)
and certain limitations of the dependent claims (Olsen and Akers). These
references therefore do not make up for the deficiencies of Hossom. The
rejections under 35 U.S.C. § 103 are reversed.
Other Issues
Some of the claims on appeal (specifically, claims 17-21) are directed to a
kit rather than a method. The examiner rejected the kit claims together with
method claim 16 as obvious in view Hossom, Leuvering, and Akers. The
rationale of the rejection was the same as discussed above, with Akers cited as
“teach[ing] an assay to detect antigens such as . . . C-reactive proteins.”
Examiner’s Answer, page 6. Akers was also cited as “teach[ing] assembling all
of the necessary reagents for the assay into kits.” Id.
We have concluded that Hossom and Leuvering do not disclose or
suggest all of the limitations of the claimed method, especially the specifically
recited porous support. This conclusion requires reversing the examiner’s
rejection of the kit claims as well as the method claims.
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