Appeal No. 1996-2598
Application No. 08/220,212
page 40). As discussed above, Blanco describes a blood agar overlay technique to determine the
hemolytic activity of plated selective media. Lee also describes using a blood agar overlay on a
streaked LPM agar to screen for hemolytic activity of
L. monocytogenes (page 1215). Cassiday describes ten direct plating media for isolating and
enumerating four strains of noninjured and injured L. monocytogenes, wherein the media used a variety
of antibiotics and chemicals (para. bridging pages 113-114; para. bridging pages 114-115).
According to the examiner, “[t]he sole difference between the claimed invention and the
teachings of Cox et al. is the application of the blood component as part of the mixture rather than as an
agar overlay” and Blanco especially suggests the benefits from use of the overlay method, e.g., clearer
visualization (answer, page 9). However, as noted above, the claim 5 preamble language “devoid of
esculin, [sic] and phenylethanol” and the claim 22 language “consisting essentially of” both preclude the
presence of ingredients, e.g., acriflavine (disclosed by Cox), phenylethanol (disclosed by Blanco and
Lee) and esculin (disclosed by Blanco), which negatively impact the viability of L. monocytogenes (see
specification, page 15, lines 1-3; page 4, lines 11-12 and 15-16; page 13, lines 10-12; page 14, line
21; original claims 1, 5, 13, 14 and 21). Rather than specifically addressing the exclusion of these
ingredients, the examiner argues that excluding phenylethanol would be expected to result in a medium
which was less selective for L. monocytogenes because the absence of phenylethanol, an antimicrobial,
would allow other contaminating bacteria to survive (answer, pages 10-11). However, the claimed
- 7 -
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007