Appeal No. 1997-2388
Application No. 08/326,304
support with albumin prevents nonspecific binding of antigen to the support (col. 3, lines
36-40).
Based on this record, we find that the examiner has relied on impermissible
hindsight in making his determination of obviousness. In re Fritch, 972 F.2d 1260, 1266,
23 USPQ2d 1780, 1784 (Fed. Cir. 1992) (“It is impermissible to engage in hindsight
reconstruction of the claimed invention, using the applicant’s structure as a template and
selecting elements from references to fill the gaps”).
Accordingly, the rejection of claims 1, 4, and 8 rejected under 35 U.S.C. § 103 as
being unpatentable over Ebersole is reversed.
2. Rejection of claim 9 under 35 U.S.C. § 103 over Ebersole and Cole
Cole discloses use of antigen/antibody tagged, enzyme encapsulating liposomes in
an immunoassay (see e.g., abstract; col. 2, lines 22-32). We find nothing in Cole which
makes up for the deficiencies in Ebersole. Accordingly, based on this record, the rejection
of claim 9 under 35 U.S.C. § 103 as being unpatentable over Ebersole as applied to claim
1 in view of Cole is reversed.
3. Rejection of claims 21, 23, and 25 under 35 U.S.C. § 103 over Ebersole
and Bashawe
According to the examiner, "Bagshawe was cited and relied upon only to provide a
8
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