Appeal No. 1997-2513
Application No. 08/206,917
We reverse the rejection of claims 5, 6 and 8-11, and the rejection of claim
12 under 35 U.S.C. § 103. We affirm the rejection of claims 1-4 under 35 U.S.C.
§103 and the obviousness-type double patenting rejection.
DISCUSSION
In reaching our decision in this appeal, we have given careful consideration
to the appellants’ specification and claims, and to the respective positions
articulated by the appellants and the examiner. We make reference to the
examiner’s Answer4 for the examiner’s reasoning in support of the rejections. We
further reference appellants’ Brief5, and appellants’ Reply Brief6 for the appellants’
arguments in favor of patentability.
CLAIM GROUPING:
Appellants argue (Brief, page 3) that “[c]laims 1-4 are directed to a method
for determining event-counting linearity of a flow cytometer. Claims 5-6 and 8-12
are directed to a method for absolute counting of cells by flow cytometry.” In
addition, claims 5, 6 and 8-11 stand rejected on a different ground than claim 12.
Therefore, we interpret these statements as setting forth three groups (1) claims 1-
4, (2) claims 5-6 and 8-11 and (2) claim 12. Accordingly, we limit our discussion to
claims 1, 5 and 12. Furthermore, claims 2-4 stand or fall
4 Paper No. 22, mailed February 7, 1996.
5 Paper No. 21, received October 5, 1995.
6 Paper No. 24, received March 4, 1996.
4
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