Appeal No. 1997-3503
Application No. 08/172,866
The examiner concludes (Answer, page 5) that:
It would have been obvious … to utilize the magnetic gelatin
particles taught by … [‘622] in the assay of … [‘061] because …
[‘622] specifically teach that they can be used as carriers to
immobilize biological proteins and that they offer advantages over
traditional particles used in agglutination assays, such as control of
agglutination time in an antigen-antibody reaction by a magnet and
easy separation from a suspension by magnetic force. … [‘061]
teach that detection of an agglutination pattern for determination of
an antigen or antibody is well known, [however] they do not
specifically describe the vessel utilized and the pattern formed. …
Sakuma teaches that such vessels and patterns are well known
and conventional in the prior art. Provision of the magnet at the
bottom of one of these conventional vessels would provide the
magnetic field described in step (b) of claim 29 (since it would
basically replace the force of gravity described by Sakuma).
Appellants argue (Brief, page 16) that ‘622 “do not teach or suggest when
to apply a magnetic force and where to dispose a magnet…. [‘622 also does]
not teach or suggest a specific agglutination time, making it quite unclear how to
control the reaction.” Appellants argue (Brief, page 17) that “[t]he present
invention permits a substantial shortening of the time required for the
immunoassay by the particle agglutination method and also permits improving
assay sensitivity.
Regarding appellants’ arguments concerning unexpected results, we look
to the Nakamura Declaration11 wherein the claimed invention is compared to a
method utilizing centrifugal force. Appellants state (Brief, page 9) that “[t]he
methods of the present invention utilizing a magnetic force is extraordinarily
advantageous when compared to the method utilizing centrifugal force….”
Applicants further argue (Brief, page 17) that “the unexpected results of the
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