Appeal No. 2007-1027 Page 4
Application No. 10/134,575
that it would not be useful for histologic analysis. Accordingly, we are not
persuaded by appellants’ assertions.
New teaches a method wherein cells are stained with neutral red. New,
Deleted: where
column 9, lines 37-47. The cells are then treated with different concentrations of
bile salt, which includes sodium deoxycholate2. New, column 9, lines 47-61. As
New explains (column 9, lines 37-41), “[i]n this procedure, . . . cells are first
stained and then incubated with test materials and measurements are made to
determine the extent to which incubation with test materials has caused the stain
to leak out of the cells during exposure.” In this regard, we note that appellants
recognize that “[t]he standard test described in New is directed to the uptake and
release of a dye referred to as ‘Neutral red’ by live Caco-2 cells during exposure
to bile salts.” Brief, page 4, footnote omitted. Accordingly, New teaches a
composition of matter which comprises neutral red stain in combination with bile
salt and cells. In our opinion this reads on appellants’ claimed invention.
Therefore, we affirm the rejection of claim 5 under 35 U.S.C. § 102(b) as
anticipated by New. Claims 6 and 8-10 fall together with claim 5. We recognize,
however, that our reasoning differs from that of the examiner. Accordingly, we
designate our affirmance a new ground of rejection under 37 C.F.R. § 41.50(b).
Obviousness:
Claims 5-10 stand rejected under 35 U.S.C. § 103 as being unpatentable
over the combination of New and Leung.
2 New, column 9, lines 5-6.
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