Appeal No. 1996-0111
Application 08/041,428
657, 667 n.24 (Fed. Cir. 1985). On the record before us, the examiner has failed to
provide any factual evidence which would have suggested the use of the correlation of the
levels of " -AGP in animals to certain specific disease conditions in diagnostic methods
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for determining the presence of a disease condition in a group of animals, the use of such
diagnostic methodology in a method of controlling the health of a group of animals, or
maintaining the group of animals in a condition of optimum health as claimed. Thus, we
find that as to this rejection the examiner has failed to establish a prima facie case of
obviousness within the meaning of 35 U.S.C. § 103.
Where, as here, the examiner fails to establish a prima facie case, the rejection is
improper and will be overturned. In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598
(Fed. Cir.1988). Therefore, the rejection of claims 1-26 under 35 U.S.C. § 103 as
unpatentable over Fudenberg, Toyama, or Shell taken in view of Ruhenstroth-Bauer and
Belpaire is reversed.
Claims 25-26:
In considering the issues raised by the rejection of claims 25-26 under 35 U.S.C. §
103 as unpatentable over Tamura I, Tamura II and Itoh, we must first review the examiner's
holding that the subject matter of claims 25-26 is not entitled to the effective filing date of
the parent application and that therefore Tamura I, Tamura II and Itoh constitute prior art
with regard to these claims.
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