Appeal No. 94-2788
Application 07/912,408
The references relied upon by the examiner are:
Stackebrandt et al. (Stackebrandt) 5,089,386 Feb. 18, 1992
Edberg et al. (Edberg), “Rapid Spot Test for the Determination of Esculin Hydrolysis,”
Journal of Clinical Microbiology, pp. 180-84, August 1976.
Claims 1 through 25, 27, and 28 stand rejected under 35 U.S.C. § 103 as
unpatentable over the combined disclosures of Edberg and Stackebrandt. We affirm.
Appellant states at page 2 of the Appeal Brief that the claims stand or fall together
for the purposes of this appeal. Accordingly, we shall limit our consideration of the issues
raised in this appeal as they pertain to claim 7, the broadest claim pending in the
application.
Claim 7 requires two steps. First, an enrichment broth is inoculated with a sample
and a culture is grown. Subsequently, the culture is pelleted.
Edberg describes a rapid esculin hydrolysis spot test which requires an inoculum.
As set forth in the fourth full paragraph of the left-hand column of page 181, the inoculum
may be derived from a 24-h bacterial colony, or in the alternative, a “[d]ense, centrifuged
material from a broth culture may also be used.” See also the paragraph bridging the
columns on page 182 of Edberg (“Centrifuged material from Tripticase soy broth was also
efficacious.” ).
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