Appeal No. 1996-3973
Application No. 08/048,657
Based on the foregoing, we conclude that the examiner has not established a prima facie
case of obviousness as to claims 1, 3, 4, 6, 8, 9 and 11-13 over Daffern in view of Moyer.
Having concluded that the examiner has not established a prima facie case of obviousness, we do
not reach appellants’ discussion of rebuttal evidence on page 4 of the reply brief.
II. Rejection of claims 2, 5, 7 and 10 over the above combination of Daffern in view of
Moyer taken further in view of any of Piejko, Kumar, Schaeffer or Przybylowicz
The examiner relies on Piejko, Kumar, Schaeffer or Przybylowicz to establish the
obviousness of using a nylon membrane as the porous substrate of claims 2 and 7 and of using
either cellulose acetate or diatomaceous earth as the spreading agent of claims 5 and 10 (answer,
page 8).
However, as to Piejko, the examiner has not explained why one of ordinary skill in the art
would have specifically selected either polyamides or cellulose acetate from the list of film-
forming, water-insoluble organic polymers (col. 6, lines 5-35) used to form a membrane for
detection reagent incorporation or where Piejko discloses or suggests cellulose acetate as a
spreading agent. Furthermore, like Daffern and Moyer, example 56 in Piejko discloses
combining the analyte-reactive agent and the indicator reagent in the same layer. Kumar
similarly describes “the combination of a complete reagent system and a reflective component in
a single layer” (emphasis added, page 5, lines 2-4) (see also page 9, lines 4-18 wherein all
reagents necessary for a glucose determination are simultaneously provided in the reagent
matrix). Again, the examiner has not explained why one of ordinary skill in the art would have
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