Appeal 2007-0725
Reexamination Control 90/006,785
Patent 5,073,484
V. Analysis
1. Weiss
As set out above (at FFs4 4-8), Weiss teaches each element of the
method of claims 22 and 23.
Patentee argues:
(1) that Weiss lacks detection “in the reaction zone” because
the movement of the dye of Weiss is not detected until after the reaction
between the ligand and the antiligand occurs; (Br. at 9).
(2) that the Weiss patent lacks an enabling disclosure; (Br. at
12).
(3) as to claim 23, that the dye of Weiss is not a “label” as
one skilled in the art would construe a “label”. (Br. at 12-13).
As to the first argument, we agree with the Examiner that detection
may occur in a “reaction zone” by determining if dye has been displaced
from the particle or not. (Answer at 7). We have not been directed to a
definition of the reaction zone in the ‘484 Specification nor has Patentee
urged a particular definition. However, giving the term its broadest,
reasonable meaning in view of the Specification, we understand the reaction
zone to include the area around the reactant used to detect the analyte.5
Patentee argues that “[a] user of the testing medium cannot be
expected to distinguish between the original color of the zone and a [sic-an]
4 Findings of fact.
5 We note that the “reaction zone” may include the area just beyond
where the reactant is placed and where any dye that was displaced would be
easily viewed for purposes of detection. However, since it is not clear that
the Examiner relied upon this reasoning, we do not base our affirmance on
it.
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