Appeal No. 1997-2389
Application No. 08/987,233
In rejecting claims 29, 30, 36 - 42, and 44 - 46 under 35 U.S.C. § 103 the examiner
has relied upon Jolley, Fernwood, and Mattiasson taken in further view of Feng, Sadowski,
and Singer. We have noted the deficiencies of Jolley taken in combination with Fernwood
and Mattiasson as their disclosure relates to the claimed invention. On consideration of
this rejection under 35 U.S.C. § 103, we need only determine whether Feng, Sadowski,
and Singer, additionally relied on in the rejection of claims 29, 30, 36-42 and 44-46,
provide that which is lacking from the combined teachings of the other references. They
do not.
At page 10 of the Examiner's Answer the examiner acknowledges that Jolley,
Fernwood, and Mattiasson "differ from the instant invention in that they fail to disclose
hybridization probes as the specific reagents in the second part of the assay" and "fail to
disclose reagents specific for the determination of E.coli or other coliform bacteria." The
examiner cites Sadowski to demonstrate that "it is conventional to detect E. coli with ani-
pilar [sic] or antiflagellar monoclonal antibodies." (Answer, page 10). The examiner cites
Feng to "show that determination of E. coli by metabolism of 4-methyl-umbelliferone-D-
glucuronide is also conventional" and cites Singer "to show that it is conventional to detect
specific microorganisms by in situ hybridization using polynucleotide probes." Thus,
Sadowski, Feng, and Singer describe aspects of the rejected claims which are missing
from the disclosures of Jolley, Fernwood, and Mattiasson, but fail to provide the suggestion
or direction which would have led one of ordinary skill in this art to modify the methodology
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