Appeal No. 93-3369
Application 07/344,179
diagnostic assays. See the paragraph bridging columns 2 and 3 of
Diekmann and in Graas, see column 4, lines 43-59 and column 9,
lines 32-46. Neither Diekmann nor Graas teach the use of a solid
support in the sleeve component of their devices. The rejection
combines these teachings with those of Liotta in a manner similar
to the above rejection to find the claimed column and sleeve type
diagnostic device to have been obvious.
We do not agree that the claimed device is unpatentable in
view of the combined teachings of any one of Diamond, Diekmann or
Graas and the Liotta reference. The critical structural features
of the claimed device are neither taught nor suggested by these
references.
The claims at issue are drawn to a device not a method of
using a device in a separation or diagnostic method. The
analysis must focus on the elements of the claimed device. An
argument centered on the extent of similarity between the
mechanism of competitive binding displacement in Liotta’s
antibody/antigen diagnostic system versus chain migration
displacement in Diamond’s DNA hybridization assay is tangential
at best to the issue of the obviousness of the claimed device
over prior art devices.
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