Ex Parte KRANTZ et al - Page 7

                Appeal No. 1996-3973                                                                                                         
                Application No. 08/048,657                                                                                                   

                Daffern and Moyer combine the analyte-reactive agent and the indicator reagent in the same layer                             
                and while the references could be combined as the examiner argues, the examiner has failed to                                
                provide a reason why the references should be combined.  The mere fact that the prior art could                              
                be so modified would not have made the modification obvious unless the prior art suggested the                               
                desirability of the modification.  In re Laskowski, 871 F.2d 115, 117, 10 USPQ2d 1397, 1398-99                               
                (Fed. Cir. 1989); In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984).                                     
                        Furthermore, the examiner’s position that “the absorbent and porous layers of the                                    
                references would appear to function as the presently claimed spreading layer” (answer, page 10)                              
                is not well taken.  A “spreading” layer is more than a simple application and/or filter layer.  Both                         
                appellants’ specification and the prior art indicate that a “spreading” layer distributes an applied                         
                liquid sample so as to provide a uniform concentration of liquid at the surface of the spreading                             
                layer facing (see e.g., specification, page 5, lines 10-17; Przybylowicz, col. 3, lines 25-31;                               
                Schaeffer, col. 6, lines 44-55).  The examiner has failed to establish, on this record, that one of                          
                ordinary skill in the art would have reasonably expected the absorbent and porous layers of the                              
                references to function as a spreading layer, i.e., to promote the spreading of an applied sample                             
                droplet over the surface of the layer exposed through the aperture as required by the claimed                                
                        Finally, the examiner has failed to point out and we do not find where Daffern and/or                                
                Moyer disclose or suggest a combined spreading and reactive reagent layer containing both a                                  
                spreading agent and an analyte-reactive agent.                                                                               
                                                                    - 7 -                                                                    

Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  Next 

Last modified: November 3, 2007