Appeal No. 95-4481
Application No. 07/911,667
of obviousness. However, it is factually inaccurate. Merely reversing the order of binding
in Emlen’s assay would leave a number of differences between the two assays
unaddressed, e.g., differences in specific reagents. Even if Emlen did describe the
present assay in reverse order, on this record, the examiner has provided no reason,
suggestion or motivation stemming from the prior art to disassemble Emlen’s assay and
reassemble it in reverse order.
In conclusion, we agree with appellant that the examiner did not meet the initial
burden of establishing a prima facie case of obviousness of claims 1 through 7.
Accordingly, the rejection of claims 1 through 7 under 35 U.S.C. § 103 is reversed.
OTHER ISSUE
Claims 1 through 7 are now free of rejection. However, we note that the claims are
confusing in a number of respects. Merely by way of example, the third step of claim 1
recites that the first mixture (i.e., captured human IgG, immobilized on the
immunoadsorbent of the first step) is incubated with dsDNA “for a period of time sufficient
to bind to said immunoadsorbent any anti-DNA antibodies which may be present in the
serum.” This is confusing because the anti-dsDNA antibodies are already on the
immunoadsorbent at this point in the assay; it is the dsDNA that is captured in the third
step. Also, the last step of claim 1 is inconsistent with the preamble; the method does not
determine the amount of IgG in the sample, it determines only that portion of the population
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