Appeal No. 1997-3503
Application No. 08/172,866
irreversibly bound to a solid matrix….” The examiner concludes (Answer, page
8) that:
It would have been obvious for one of ordinary skill in the art
to immobilize a substance which specifically binds to the analyte to
the reaction vessel as in Rosenfield et al. prior to incubation with
the sample and magnetic particles of the references, because
Rosenfiled et al. teach that such treatment significantly improves
agglutination procedures such as those utilized in the assay of the
references.
Appellants argue (Brief, page 19) that “the agglutination pattern is
improved in Rosenfield et al. by a washing step for removing the unbound
indicator particles, not by immobilization.” According to appellants (Brief, page
19) “[i]t follows that it is not possible to form a clear agglutination pattern as in
Rosenfiled et al., if the washing step required by Rosenfield et al[.] is not
employed, no matter how Rosenfield et al. may be combined with other
references.” In response, the examiner argues (Answer, page 14) that “[t]he
instantly claimed assays do not exclude a step of removing the non-reacted
particles, as taught in Rosenfield et al.”
We are not persuaded by appellants argument (Reply Brief, page 5) that
“the present invention is distinguished from Rosenfield et al., in which the
particles are already removed by washing at the time of the determination.” As
noted by the examiner, supra, the “instantly claimed assay does not exclude a
step of removing the non-reacted particles.” 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 39, 40, 42 and 46-48
under 35 U.S.C. § 103 over ‘061, ‘622 and Sakuma further in view of Rosenfield.
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