Ex Parte KRANTZ et al - Page 9




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


                specifically selected either diatomaceous earth from Kumar’s list of suitable reflective particles                           
                (page 8, lines 7-16) or cellulose acetate from Kumar’s list of binders (page 10, lines 30-36) for                            
                use as a spreading agent in a multilayered test strip.  While Schaeffer and Przybylowicz both                                
                describe diatomaceous earth, cellulose acetate and polyamide as suitable particulate materials for                           
                forming spreading layers (in Schaeffer see col. 12, line 45 - col. 13, line 21 and in Przybylowicz                           
                see col. 7, lines 8-64 and col. 15, lines 36-38), the examiner has not pointed out and we do not                             
                find where either reference discloses or suggests a polyamide, i.e., nylon, porous matrix                                    
                impregnated with indicator reagent as claimed. It appears that the examiner is again using the                               
                wrong standard of patentability under  103, i.e., what could be combined from the references,                               
                without providing any reason why the references should be combined.  Finally, the examiner has                               
                not established, on this record, how the combined disclosures of Daffern, Moyer and any one or                               
                more of Piejko, Kumar, Schaeffer or Przybylowicz would have disclosed or suggested the                                       
                specifically claimed juxtaposition of layers and apertured backing to one of ordinary skill in the                           
                art.                                                                                                                         
                        Therefore, we conclude that the examiner has not established a prima facie case of                                   
                obviousness of claims 2, 5, 7 and 10 over Daffern in view of Moyer taken further in view of any                              
                of Piejko, Kumar, Schaeffer or Przybylowicz.                                                                                 
                III.    Rejection of claims 14-19 over Przybylowicz in view of Moyer                                                         
                        The examiner has failed to address all of the substantive limitations of claims 14-19.  For                          
                example, the examiner has not pointed out where either Przybylowicz or Moyer discloses or                                    
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