Appeal No. 1997-4132
Application No. 08/263,500
component, signal modulation material and labeled material, preservation
materials such as gelatin and non-reducing sugars may be incorporated in
the element. [Answer, para. bridging pp. 4-5.]
The examiner expressly relies on "Ito's use of gelatin as a preservative..., not its use
as another porous layer" (answer, p. 6, para. 3). More specifically, in view of Ito's
statement that "[t]hese preservatives are desirable to be present in the proximity of the
immobilized materials and labeled materials" (c. 17, ll. 1-3), it is the examiner's position
that "it is unclear how one could interpret a preservative as not being in contact with the
material being preserved" (answer, p. 8, ll. 3-4).
However, we agree with appellant that " 'encapsulation' and 'in the proximity of' are
simply not the same" (brief, p. 4, para 3). For example, assay reagent might be diffusively
or non-diffusively attached to an application pad or zone of an analytical device, followed
by overcoating all or a part of the application pad or zone with gelatin. See e.g., U.S.
Patent 5,075,078 issued December 24, 1991 to Osikowicz et al. at c. 13, ll. 35-47 and c.
13, l. 58 - c. 14, l. 6 (copy attached). Since the examiner has failed to establish a factual
basis for concluding that the gelatin preservative of Ito necessarily encapsulates the
immobilized specific binding materials and/or labeled materials, the examiner's stated
obviousness rejection cannot be sustained.
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