Appeal No. 1996-2598
Application No. 08/220,212
listeria selective medium (LSM) (Oxford formulation), and (5) LSAMM composed of agar, lithium
chloride, aesculin, ammonium ferric citrate, potassium tellurite, acriflavine HCl, polymixin B sulphate
and sodium ceftazidine sulphate (page 126, “MEDIA”).
According to the examiner, “[t]he McBride agar (MMA) comprises lithium chloride and
antibiotics in amounts effective to selectively inhibit microbes other than Listeria, while the agar overlay
comprises blood in amounts effective to produce ß-hemolytic zones” and, thus, claims 5 and 22 are
anticipated by Blanco (answer, pages 3 and 4). However, MMA comprises phenyl ethanol agar,
glycine anhydride, lithium chloride and cycloheximide. Therefore, since the claim 5 preamble language4
“devoid of ... phenylethanol” and the claim 22 language “consisting essentially of” both preclude the
presence of phenylethanol, we will not sustain the examiner’s rejection of claims 5 and 22 based on
Blanco.
III. Rejection of claims 5-10 and 22 under 35 U.S.C. § 103 as unpatentable over Cox taken
with Blanco, Lee and Cassiday.
Cox describes a selective and differential medium for L. monocytogenes comprising an agar
base, lithium chloride, 4-methylumbelliferyl-ß-D-glucoside, antibiotic supplement (i.e., cycloheximide,
colistin sulphate, acriflavine, cefotetan, fosfomycin), whole sheep blood and sphinogmyelinase (Table 2,
4 See J. Lovett, “Isolation and Enumeration of Listeria monocytogenes,” 42 Food Technology 172-175,
Table 4, page 174 (copy attached) as referenced by Blanco.
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