Appeal No. 1997-2391
Application 08/239,265
Kansas et al. (Kansas), “Expression of the CD11/CD18, Leukocyte Adhesion Molecule 1,
and CD44 Adhesion Molecules During Normal Myeloid and Erythroid Differentiation in
Humans,” Blood, Vol. 76, No. 12, pp. 2483-492 (Dec. 1990)
Claims 1 through 7, 10 through 13, 15 and 16 stand rejected under 35 U.S.C. §
103 as unpatentable over Loken and Kansas. Claims 8 and 9 stand rejected under 35
U.S.C. § 103 as unpatentable over Loken, Kansas and Basch. We reverse both
rejections.
DISCUSSION
Claim 1, directed to multi-parameter analysis of cells in body fluid, represents the
invention in its broadest aspect: erythrocyte precursors and proliferating cells, among
others, are identified and counted based on differential light scatter and differential binding
of a fluorescent nucleic acid dye, a first monoclonal antibody specific for an antigen
differentially expressed on the cells, and a second monoclonal antibody specific for an
antigen differentially expressed on erythrocyte precursors and proliferating cells (the two
antibodies have fluorescent labels with peak emission spectra different from each other
and from the nucleic acid dye). The two antibodies are described in functional terms in
claim 1, but there is no requirement that they recognize any antigen in particular.
Nevertheless, both the examiner and appellants have focused throughout the prosecution
on that embodiment of the method wherein the first fluorescently-labeled monoclonal
antibody is specific for CD45 and the second is specific for CD71 (as required in claims
3
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