Appeal No. 1997-4138
Application No. 08/384,681
in liquid form comprising an enzyme coupled to a specific second binding partner of the at
least one component to be detected." The examiner acknowledges that (Answer, page 6):
Fish differs [from the claimed invention] in failing to disclose
the concentration of the probe (either stock or working
solution).
The examiner does not allege that the remaining references provide that which is
missing from Fish. Instead the examiner concludes that (Answer, pages 6-7):
[i]t would have been a matter of routine optimization well within
ordinary skill in the art to ascertain an acceptable
concentration of probe or sample dilution, such as that
specifically claimed, because the particular concentration of
probe required depends upon the antibody used and the
enzyme used, e.g.[,] how avid the antibody is to begin with;
how active the enzyme preparation is; how much inactivation
of the antibody and/or enzyme occurs as a result of the
conjugation process; the molar ratio of antibody/enzyme in the
probe, etc. These factors can vary widely for different
conjugate, particularly when monoclonal antibodies are used.
Thus, use of a particular concentration of conjugate carries
little patentable weight, especially where the recited
concentration may refer to either a stock solution which can be
further diluted to form a working solution or to the working
solution itself.
What is missing from this analysis and the conclusion reached is any evidence
which would establish that this information was within the knowledge of one of ordinary skill
in this art at the time of the invention and which would reasonably support either
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