Appeal No. 1997-2513
Application No. 08/206,917
together with claim 1 and claims 6 and 8-11 stand or fall together with claim 5. 37
CFR §1.192(c)(7)(1995).
THE REJECTIONS UNDER 35 U.S.C. § 103:
The initial burden of presenting a prima facie case of obviousness rests on
the examiner. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed.
Cir. 1992).
Claims 1-4:
The examiner argues (Answer, page 4) that Stewart teaches “a method for
quantitating cell concentration using a flow cytometer wherein the method
comprises adding to several aliquots of fluorescently stained cell samples either red
fluorescent microspheres or green fluorescent microspheres of known concentration
and whose emission spectra are differentiable from each other and the sample.”
According to Stewart (Abstract), “[s]ince the [fluorescent micro] particle
concentration is known, the number of [fluorescent micro] particles that have
accumulated gives the exact volume of the sample analyzed.” The examiner argues
(Answer, page 4) that while Stewart “does not teach adding equal volumes of known
concentration to each of the samples wherein the concentration of microparticles
added to each sample is different,” Stewart teaches “on page 240 that statistical
analyses was performed on the results from all aliquots to determine linearity.”
The examiner concludes (Answer, page 5) that “[i]t would have been obvious
to the ordinarily skilled artisan at the time the invention was made to have added
equal volumes of known concentration to each of the samples wherein the
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