Appeal No. 1997-2388
Application No. 08/326,304
2
(page 13, lines 22-28; page 15, lines 5-11). Nonspecific binding to the support is
reduced or eliminated by pretreating the support with a dilute protein, e.g., albumin,
solution (page 13, lines 9-14).
Appellants admit that Ebersole, in one passage or another, discloses the claimed
elements, i.e., nonimmunological capture of analyte, albumin pretreated porous support,
enzyme-labeled antibody and a method for assay of viral antigen, but argue that the broad
disclosure in Ebersole does not disclose or suggest the claimed combination of elements
(brief, page 5). We agree.
The examiner bears the initial burden of establishing a prima facie case of
obviousness. To establish a prima facie case of obviousness, there must be both some
suggestion or motivation to modify the reference or combine reference teachings and a
reasonable expectation of success. In re Vaeck, 947 F.2d 488, 493, 20 USPQ2d 1438,
1442 (Fed. Cir. 1991). It is insufficient that the prior art discloses the components of the
claimed invention, either separately or in other combinations; there must be some
teaching, suggestion, or incentive to make the combination made by appellants.
2Ebersole states that
lectins can act in at least two different functions. In one mode of operation, a lectin can
capture all of the microorganisms from a biological sample for which the lectin has
specificity. In such a situation the anti-analyte antibody-enzyme conjugate acts to identify
the microorganism sought. Alternatively, the lectin itself can serve to capture selectively
the microorganism of interest (see footnote 2 above) [i.e., WGA, wheat germ agglutinin,
can selectively capture N. gonorrhoeae without binding N. meningitidis]. The
microorganism so immobilized on the active support can then be detected by the
immunoassay of this invention. [Page 17, lines 1-11.]
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