Appeal No. 1997-3503
Application No. 08/172,866
for forming a pattern.” The examiner argues (Supplemental Answer, bridging
paragraph, pages 2-3) that the “claims of Forrest are all generically drawn to ‘[a]
test-tube assembly for use in immunoassays utilizing magnetic particles.”
Furthermore, in contrast to appellants’ position (Reply Brief, page 3) Forrest
does not necessarily involve decanting. Forest contemplates (column 6, lines 8-
14) the use of the device wherein “no separation step [decanting] need be used.”
Therefore, we agree with the examiner (Supplemental Answer, page 3) that
Forrest’s “device for magnetic separation is … applicable to a magnetic
agglutination assay as taught by the references of record.”
Therefore, in our opinion, the examiner met her burden of establishing a
prima facie case of obviousness. Accordingly, we affirm the examiner’s rejection
of claims 32, 33, 50 and 51 under 35 U.S.C. § 103 over ‘061, ‘622 and Sakuma
further in view of Forrest.
Claim 38:
The examiner argues (Answer, page 7) that the combination of ‘061, ‘622
and Sakuma “differ from the instant invention in that they do not specify that the
particles can be colored.” To make up for this deficiency the examiner applies
‘813 (Answer, page 7) to “teach that gelatin particles are suitable as a carrier for
antigens and antibodies for indirect passive agglutination…. A suitable coloring
agent may be added to the particles during formation, or the insolubilized
particles may be treated with the coloring agent….” The examiner concludes
(Answer, page 7) that:
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