Appeal No. 95-1293
Application 07/727,387
the concentration of soluble fibrin in the body fluid".
Where, as here, the examiner has not established that persons
having ordinary skill in the art would have expected that the
adsorption binding of Stemberger has the same strength and
selectivity as the antigen/antibody binding of Scheefers-
Borchel, we find that the references would not have led
persons having ordinary skill in the art to appellants' method
for quantitatively determining soluble fibrin in a body fluid
with a reasonable expectation of success.
At most, a person having ordinary skill would have found
it obvious to try the proposed modification of the Scheefers-
Borchel, per the teachings of Stemberger and "if necessary",
Tom.
Obvious to try, however, is an improper consideration in
adjudicating obviousness. Hybritech Inc. v. Monoclonal
Antibodies, Inc. 802 F.2d 1367, 1380, 231 USPQ 81, 91 (Fed.
Cir. 1986).
The examiner's decision is reversed.
Reversed
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