Appeal No. 1997-2388
Application No. 08/326,304
Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1143, 227 USPQ 543, 551 (Fed. Cir.
1985) (insufficient to select from the prior art the separate components of the inventor's
combination, using the blueprint supplied by the inventor).
Here, the only place we find the suggested combination of nonimmunological
capture, i.e., nonspecific binding, of analyte to an albumin pretreated porous support,
enzyme-labeled antibody and a method for assay of viral antigen, is in appellants’
specification. Example 6 appears to be the closest example of nonimmunological capture
3
and detection of a viral antigen in Ebersole (pages 31-32). In Example 6, an herpes virus
4
(HSV) sample is absorbed onto a starch coated cotton swab and the swab is then
contacted with peroxidase-labeled anti-HSV antibody, washed and contacted with an
iodide containing peroxidase substrate to generate a colored product indicative of viral
concentration. Starch is a carbohydrate, not a protein like albumin.
Furthermore, the examiner has not established that one of ordinary skill in the art would
have had a reasonable expectation of success that a support pretreated with albumin to
saturate its nonspecific attachment sites would be useful for nonimmunological
capture/nonspecific binding of analyte. Indeed, Bagshawe discloses that pretreating a
3Ebersole's Example 13 (pages 43-45) also uses a starch coated cotton swab to assay for HSV.
However, in that example Helix pomatia (HPA) lectin is used to specifically capture the HSV. See the
Table on page 16 of Ebersole.
4According to Ebersole, "a starch-coated material ... can complex with iodine generated as the
product of an enzyme-catalyzed reaction to yield a characteristic blue color on the support" (page 20, lines
26-29).
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