Appeal No. 1997-3805
Application No. 08/439,602
In our view, the mere fact that both references are directed to test systems for
detecting occult blood would not have led one skilled in the art to substitute the aniline
stabilizer from Gantzer’s solid phase system for the phenolic enhancer/developer in
Baker’s liquid phase system, when the stated functions of those reagents in their
respective systems are different.
In our judgment, the only reason or suggestion to combine the references in the
manner proposed by the examiner comes from appellant’s specification. Accordingly, the
rejection of claims 24 through 26 and 30 through 43 as unpatentable over Baker and
Gantzer is reversed.
CONCLUSION
For the reasons set forth in the body of this opinion, we have affirmed the rejection
of claims 24 through 26 under the doctrine of obviousness-type double patenting, and
reversed the rejection of claims 24 through 26 and 30 through 43 under 35 U.S.C. § 103.
As a result of the action taken today, claims 30 through 43 are free of rejection.
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