Appeal No. 1999-0161
Application 08/441,567
include a detergent to stabilize the phospholipid in the hexagonal organization. Answer,
page 6.
To rectify this deficiency of Janoff, the examiner relies on Madden for establishing
evidence of the use of detergents such as deoxycholate to stabilize the bilayer organization
of phospholipid, increasing the temperature at which the bilayer to hexagonal transition
occurs. Answer, page 6.
Thus, according to the examiner, it would have been obvious to one of ordinary skill
in the art at the time the invention was made to stabilize the phospholipid of Janoff with the
detergent of Madden because Madden teaches that the use of detergents stabilizes
phospholipid and to modify the assay of Janoff with a detergent as taught by Madden
would have the expected result.
A prior art reference must be considered in its entirety, i.e. as a whole, including
portions which would lead away from the claimed invention. W.L. Gore & Associates, Inc.,
v. Garlock, Inc., 721 F.2d 1540, 220 USPQ 303 (Fed. Cir. 1983). In the present case we
find that the combination of references is without basis. Importantly, we find that Madden
teaches away from the invention, as claimed.
The specification and Janoff >299 both indicate that hexagonal lipids can reduce
false positives in SLE assays, however, a lamellar or bilayer lipid structure Acompletely fails
at this task.@ See Janoff >299, column 4, line 63 to column 5, line 25; see also
7
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