Appeal No. 1997-2391
Application 08/239,265
5, 6, 12, 13, 15 and 16). As this board functions as a board of review, not a de novo
examination tribunal, we shall do likewise.2
There are two rejections under 35 U.S.C. § 103, and each is based on the
combination of Loken and Kansas. We view the examiner’s proposed combination of
these two references as the dispositive issue in each of the rejections.
Loken discloses multi-parameter analysis of erythrocytes, reticulocytes, nucleated
erythrocytes, platelets, lymphocytes, monocytes, neutrophilic granulocytes, basophilic
granulocytes, eosinophilic granulocytes, and precursors of nucleated cells in body fluid
(e.g., whole blood or bone marrow aspirates) using two channels of light scatter and
differential binding of two fluorescent nucleic acid dyes and at least one fluorescently
labeled monoclonal antibody (with different peak emission spectra). In a preferred
embodiment, thiazole-orange (an RNA dye), LDS-751 (a DNA dye) and phycoerythrin-
labeled anti-CD45 monoclonal antibody are used to identify and count individual cells in a
sample. According to appellants, Loken’s analysis differs from the claimed analysis in
that:
[It] does not permit full discrimination among the erythroid lineage (i.e., it
does not permit identification of orthochromatic normoblasts, normoblasts
and erythroblasts and does not permit differentiation between mature and
immature reticulocytes) and does not permit the identification of proliferating
235 U.S.C. § 6(b): “The [board] shall . . . review adverse decisions of examiners
upon applications for patents . . . .“
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