Appeal No. 2001-1431
Application No. 07/968,553
Other Issues
We have to wonder whether the closest prior art has been applied in this
case. For example, U.S. Patent 5,369,010 discloses an immunoassay for HLA
B27 in which several cell lines, including two cell lines known to express B27 and
one known not to express B27, were analyzed by flow cytometry.2 See column
8, line 57 to column 9, line 12. This patent appears highly relevant to the instant
claims but has not previously been considered on the record. Although the
ultimate decision on whether the pending claims are patentable rests with the
primary examiner, we urge the examiner to thoroughly consider the patentability
of the instant claims in view of the ‘010 patent and any other pertinent prior art. A
copy of the ‘010 patent is attached to this opinion.
2 The ‘010 patent issued November 29, 1994, but has an effective filing date of August 16, 1985.
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