Appeal No. 1999-0161
Application 08/441,567
there would have been no motivation to one of ordinary skill in the art to use the stabilized
lamellar bilayer structure achieved by Madden in the assay of Janoff, as Janoff teaches
away from the use of such lamellar bilayer structures in SLE assays.
A reference may be said to teach away when a person of ordinary skill, upon
examining the reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was taken by the
applicant. In re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1331 (Fed. Cir. 1994). In
the present case, we find the combination of references to be without proper motivation,
based on a teaching away from the combination of references as proposed by the
examiner.
Moreover, Appellants argue that the claimed method requires a >lupus compatible
detergent,=@ i.e., a detergent which is Aone which in combination with a selected
phospholipid meets the following criteria: 1) inhibits lupus anticoagulant specifically; and 2)
does not interfere with the anticoagulation effects of heparin, anti-Factor antibodies, and
factor deficiencies.@ As indicated above, according to Janoff >299, lamellar bilayer
structures such as that of Madden interfere with SLE antibodies, and thus would not qualify
as a lupus compatible detergent as required by the claims.
In addition, the examiner has failed to particularly address the issues of particle
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