Appeal No. 93-3369
Application 07/344,179
the immobilized antigen, thus it doesn’t move on to Zone 2 and no
color reaction occurs. If the binding sites of the labeled
antibody were saturated prior to the addition of sample it would
always move through to Zone 2 whether there is antigen in the
sample or not. This would defeat the operation of the assay.
It has been held that it is not obvious to modify a prior
art device in a manner which would lead to an inoperative
construction. In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125,
1127 (Fed. Cir. 1984). Since neither Diamond not Liotta could
function as they were intended with substantially all binding
sites saturated, one cannot conclude that such a modification of
these devices would be obvious.
The generic references in Diekmann and Graas do not describe
diagnostic materials with a specificity to suggest saturation of
all binding sites of an immobilized material.
Due to the failure of the applied art to teach or suggest
all of the elements of the claimed device, the Examiner has not
met the burden of establishing a prima facie case under 35 U.S.C.
§ 103. Finding no prima facie case of obviousness in any of the
three rejections, we reverse each of them.
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