Appeal 2007-0628
Application 10/225,082
brain injury. Härter, supra, at 76. Härter was published in December 2001,
and therefore provides further evidence that those skilled in the art did not
have an expectation of detecting caspase-3 in CSF as of the instant
application’s claimed effective filing date of August 20, 2001 (Specification
1).8
Thus, we conclude that the evidence of record does not adequately
support the Examiner’s position that the cited references would have made it
obvious to obtain a single sample from a subject who may have suffered a
stroke, and assay the same sample for both S100β and caspase-3. The
rejection for obviousness is reversed.
SUMMARY
The Examiner has not shown that the claims on appeal are not
adequately described in the specification or that the claimed method would
have been obvious to a person of ordinary skill in the art. The rejections
under 35 U.S.C. §§ 112, first paragraph, and 103 are reversed.
REVERSED
lbg
8 The Examiner has provided no basis on which to conclude that the present
claims are not entitled to priority based on provisional application
60/313,775, filed August 20, 2001.
10
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