Appeal No. 97-2142
Application 08/114,896
iner’s view that
Oberhardt shows an instrument for determining a blood
characteristic where a magnetic substance is mixed with
the blood and a magnet causes the magnetic particles to
orient in a manner dependent on the characteristic of
the blood. No structure of the magnet is recited, but
in column 4, lines 29 and 30, Oberhardt discloses that
a combination of a permanent and oscillating magnetic
field may be used. Therefore, any magnet producing a
permanent and oscillating field would appear to [be]
acceptable for the system of Oberhardt. Ootsuka
teaches a magnet that produces a permanent static and
oscillating magnetic field having a core having a first
leg 4, a coil 6, and a return 1 and 5. From this
teaching, it would have been obvious to modify
Oberhardt to use the magnet structure of Ootsuka, as it
is merely the substitution of one known equivalent
magnet for another. [Answer, page 3.]
We will not support the examiner’s position. Initially we
note that the examiner appears to believe that Oberhardt does not
teach any specific magnetic structure. This is not the case.
Oberhardt in Fig. 5 clearly teaches an electromagnet 196 that
extends perpendicularly to a permanent magnet 195.
The examiner has seized upon the fact that Oberhardt in the
“SUMMARY OF THE INVENTION” makes no mention of any specific
structure when generally describing the type of magnets being
utilized in lines 29 and 30 of column 4. However, just because
Oberhardt fails to specifically mention the structural details of
the particular magnets being employed in the broad summary of the
invention, does not serve as a sufficient factual basis for
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