Appeal No. 1997-2513
Application No. 08/206,917
made that total particle count can be varied by maintaining a constant concentration
and varying the volume of the particles, or alternatively, by maintaining a constant
volume and varying the concentration. While appellants argue that the claimed
method is not equivalent to that of Stewart, appellants failed to establish why it
would not have been prima facie obvious to modify the teachings of Stewart in the
manner urged by the examiner. Therefore, we find no error in the examiner’s
rejection. Accordingly, we affirm the examiner’s rejection of claim 1 under 35
U.S.C. § 103 over Stewart. As discussed supra, claims 2-4 fall together with claim
1.
Claims 5, 6 and 8-11:
The examiner argues (Answer, page 6) that:
Stewart et al. does not teach the addition of more than one set
of microbeads to the sample, nor the use of fluorescently labelled
monoclonal antibodies as cell markers.
Schwartz teaches a flow cytometer calibration sample
containing more than one type of microparticles, i.e. microparticles
dyed with different fluorescent dyes and/or that are dyed with multiple
fluorescent dyes. The differently dyed microparticles are
distinguishable from each other.
The examiner concludes (Answer, page 6) that “[i]t would have been obvious
… to have added more than one set of microbeads to each aliquot of the sample of
Stewart et al. as taught by Schwartz in order to simultaneously calibrate two or more
fluorescence intensities of a flow cytometer having more than one fluorescence
channel.” Appellants argue (Brief, page 10) that “Schwartz … specifically provides
that the fluorescent dyes attached ‘will have excitation and emission spectra that
match the spectra of the specific fluorescent dyes used to label the sample to be
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