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
invention.
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.
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