Appeal 2007-0725
Reexamination Control 90/006,785
Patent 5,073,484
We also do not accept the unsupported conclusory statement of Dr. Gordon
that “Weiss does not disclose labeling with a chemical moiety.” (Gordon’s
Declaration at ¶ 5).
Patentee directs us to portions of Cleeland and Murachi, in support of
its contention that one skilled in the art would understand labeling to exclude
adsorption. The portions of Cleeland and Murachi discuss that labeling in
immunoassays can be (Cleeland) or is desirably, (Murachi) by covalent
bonding. However, we have not been directed to a reference showing one
skilled in the art would understand that labeling in all immunoassays is
always by covalent bonding or cannot be by adsorption. For example,
Patentee might have submitted a definition of "labeled" or "labeled
compound" from a standard textbook in the art of immunoassay or from a
technical dictionary defining labeling as incorporating a label into a specific
binding member. Moreover, Cleeland and Murachi are each addressed in
labeling in a specific context, i.e., use of fluorescent and enzyme labels,
respectively. The claims before us are not limited to these specific contexts.
2. Deutsch
Deutsch describes each element of the methods of claims 22, 23, and
25 as set out above. (FFs 17-25).
Patentee argues that Deutsch cannot anticipate its claims since
Deutsch teaches that a developing fluid is needed to provide the required
flow through the test medium. Patentee argues that, in its claimed method, it
is the solution that must provide the flow and that a step of adding a
developing fluid is not included. However, we agree with the Examiner that
the claim is open to additional steps as it uses the term “comprising”.
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