Appeal No. 1996-1618
Application No. 07/876,804
1540, 1551, 220 USPQ 303, 312 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984)
(individual references can not be "employed as a mosaic to recreate a facsimile of the
claimed invention.")
Here, the only place we find the suggested combination of the three required layers
on the specified piezoelectric crystal surface is in appellants’ specification. Based on this
record, we find that the examiner has relied on impermissible hindsight in making his
determination of obviousness. In re Fritch, 972 F.2d 1260, 1266,
23 USPQ2d 1780, 1784 (Fed. Cir. 1992) (“It is impermissible to engage in hindsight
reconstruction of the claimed invention, using the applicant’s structure as a template and
selecting elements from references to fill the gaps.”)
Accordingly, the rejection of claims 17, 18, 22-25, 27 and 28 under 35 U.S.C.
§ 103 over Bastiaans, Wilchek and Katz is reversed.
2. Rejection of claims 17, 18, 23 and 26 over Bastiaans, Wilchek and Katz as
applied to claims 17, 18, 22-25, 27 and 28 above, and further in view of
Hansen and Richards
Hansen describes a sandwich hybridization which uses a labeled nucleic acid
probe specific for a given portion of a desired sequence of interest and a biotinylated
nucleic acid probe specific for a different portion of the desired sequence bonded to an
avidin coated microparticle to “sandwich” the desired sequence therebetween, wherein
determination of label to the microparticle after separation of unbound label thereform
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