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
- 9 -
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: November 3, 2007