Appeal No. 1997-3503
Application No. 08/172,866
It would have been obvious for one of ordinary skill in the art to
color the particles of the assay of the references as in Ikeda et al.
(‘813) since it is well known that colored particles are more easily
detected in a particle agglutination immunoassay, and Ikeda et al.
(‘061) specifically suggest utilizing gelatin particles such as those of
Ikeda et al. ('‘13) which can easily be colored as demonstrated.
We are not persuaded by appellants’ argument (Brief, page 19) that ‘813 “do not
concern magnetic particles.” Appellants did not consider the teachings of the
‘813 reference in combination with the other prior art references applied in this
rejection. Here the examiner presented a reasoned statement, derived from the
prior art, as to why it would have been prima facie obvious to a person of
ordinary skill in the art at the time the invention was made to use colored
particles in the magnetic particle immunoassay method. 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 claim 38 under
35 U.S.C. § 103 over ‘061, ‘622 and Sakuma further in view of ‘813.
Claims 39, 40, 42 and 46-48:
The examiner argues (Answer, page 7) that ‘061, ‘622 and Sakuma “differ
from the instant invention in that they do not teach immobilization on the reaction
vessel of an immunological substance which specifically binds to the analyte.”
To make up for this deficiency the examiner applies Rosenfield to “describe the
basics of agglutination assays.” According to the examiner (Answer, page 7),
“Rosenfield et al. have discovered that agglutination test procedures on blood
cells are significantly improved when a monolayer of reactive cells is [sic]
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