Appeal No. 95-2215
Application 07/920,013
amplified DNA strand, wherein the labeled probe is complementary to a segment of the
amplified DNA strand, separating the fluorescently labeled hybridized probe from
unhybridized probe by electrophoresis, and detecting the presence or absence of the
fluorescently labeled hybridized probe by fluorescence detection during the
electrophoresis. Claims 5 and 8, the remaining independent claims, are directed to a
method for detecting a DNA sequence to screen a sample for the presence or absence of
a pathogen or several pathogens, respectively.
The rejection under 35 U.S.C. § 103
It is the initial burden of the patent examiner to establish that claims
presented in an application for patent are unpatentable. In re Oetiker, 977 F.2d 1443,
1446, 24 USPQ2d 1443, 1445 (Fed. Cir. 1992). We have carefully considered the
evidence and discussion in support of the rejection presented by the examiner. However,
a fair evaluation of the references, applicants' specification and consideration of the
claimed subject matter as a whole, dictates a conclusion that arriving at the claimed
method from the prior art teachings is not suggested by the record before us. When we
view the three applied references, apart from appellants' disclosed invention, we find no
reason, suggestion, or motivation to combine the references to arrive at the claimed
invention. To establish a prima facie case of obviousness, there must be more than the
demonstrated existence of all of the components. There must be some reason,
suggestion, or motivation found in the prior art whereby a person of ordinary skill in the
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