Appeal No. 1997-0838
Application 08/235,238
We agree with the examiner that, based on the specification, “there could be many
other issues that render the prior art unsatisfactory.” Examiner’s Answer, page 9. In our
view, appellants’ original disclosure would not convey to persons skilled in the art that
“more than 50% LDH activity” represents a limit on the range of LDH activity for a1 1
clinically useful assay. Accordingly, we find no error in the examiner’s determination that
the limitation “preserving more than 50% of LDH activity” is not supported by the
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specification as originally filed.
Rejection III of claims 10 and 11 under § 112, first paragraph, is affirmed.
CONCLUSION
We have affirmed Rejection III of claims 10 and 11 under 35 U.S.C. § 112, first
paragraph, and reversed Rejection I of claims 1, 4 through 6, 10, 11, 13, 15 and 16 under
35 U.S.C. § 103, as well as Rejection II of claims 10 and 11 under 35 U.S.C. § 112, first
paragraph. Thus, by our action today, claims 1, 4 through 6, 13, 15 and 16 are free of
rejection.
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