Appeal 2007-1070
Application 09/467,901
suggestion to utilize FcεR for IgE detection, including in methods such as the
one described by Johansen.
Appellant contends that “a general suggestion that an IgE receptor
might be used in the genus of detection assays does not suggest its use in the
particular method of the invention” (Br. 14). We do not agree. Precise
teachings directed to the specific subject matter of a claim are not required to
reach a conclusion of obviousness. KSR, 82 USPQ2d at 1396. “[T]he
teaching, motivation, or suggestion may be implicit from the prior art as a
whole, rather than expressly stated in the references. . . . The test for an
implicit showing is what the combined teachings, knowledge of one of
ordinary skill in the art, and the nature of the problem to be solved as a
whole would have suggested to those of ordinary skill in the art.” In re
Kahn, 441 F.3d 977, 987-988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006). In
this case, Frank expressly teaches problems associated with anti-IgE
antibodies – the same antibodies used by Johansen – and suggests a solution:
substituting FcεR because it more specific and sensitive, providing “an
advantage over . . . anti-IgE antibodies . . . to detect IgE” (Frank, col. 1, ll.
36-38; FF 13).
Appellant also argues that “skilled [worker] would be encouraged to
use Frank’s . . . method in its entirety” which involves the use of not only
FcεR but also anti-IgE (Br. 13). Appellant asserts that Frank “describes
using FcεR with antibodies, not substituting antibodies for receptors” (Br.
13). We do not find this argument persuasive. The disclosure that Appellant
is apparently referring to is Frank’s teaching that anti-IgE antibodies can be
used to detect the FcεR molecule: IgE complex (Frank, col. 9, ll. 57-60).
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