Appeal No. 1999-0123
Application No. 08/406,239
desirability of the modification. In re Gordon, 733 F.2d 900, 902, 211 USPQ 1125,
1127 (Fed. Cir. 1984). Here we see no such reason to modify the references as
applied by the examiner to obtain the claimed invention, which requires, inter alia,
both an immobilized reporter enzyme and an immobilized indicator.
Accordingly, we reverse the examiner’s rejection of claims 1-21 and 23-43
under 35 U.S.C. § 103 as being unpatentable over Zherdev and Herrmann.
The examiner relies on Mielke (Answer, page 7) to disclose “an assay which
generates peroxide with an oxidase, reacted with peroxidase to convert a substrate
reagent to a colored reaction product. A substance which competes with the
substrate reagent gives a wider range of analyte concentrations results. In claim 7
[sic] amino antipyrine is shown as an indicator.”
Mielke however, does not make up for the deficiencies of the combination of
Zherdev and Herrmann. Accordingly we reverse the examiner’s rejection of claim
22 under 35 U.S.C. § 103 as being unpatentable over Zherdev and Herrmann
further in view of Mielke.
The examiner relies on Goldman (Answer, page 10) to disclose “in column
20 an in vitro inhibitor assay method for inhibitors of C. albicans acid proteinase
with a fluorogenic substrate.”
Goldman however, does not make up for the deficiencies of the combination
of Zherdev and Herrmann. Accordingly we reverse the examiner’s rejection of s 76-
95 stand rejected under 35 U.S.C. § 103 as being unpatentable over Zherdev,
Herrmann and Mielke further in view of Goldman.
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