Appeal No. 1999-1307
Application No. 08/442,035
It is sufficient for the purposes of this appeal to note that Blatt does not disclose a
test strip device which has a cover sheet having an elongated window cut through it. While
Blatt does describe testing devices where the cover layer may be clear and transparent
(column 5, lines 21-22), we find nothing, and the examiner has pointed to no information to
be found in the reference, which would suggest modifying the device explicitly disclosed by
incorporating a window cut through the cover sheet. Further, the porous material
described by Blatt is not described as a sheet, but is described as being in the overflow
chamber (column 4, lines 21-23 and 56-59) and there is no indication that the porous
material of Blatt could be in the form of a sheet or that it should have an enlarged pillow
portion and a compressed portion which is spatially aligned with the window of the cover
sheet.
Thus, the examiner's conclusions that it would have been obvious to have both a
pillow portion and a compressed portion of the porous layer in the test strip of Blatt are not
supported by any substantive evidence. We find nothing in this reference which would has
reasonably led one of ordinary skill in this art to cut a window in the cover sheet or to
configure the absorbent material in a manner which would correspond to that which is
required by the claims.
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden of
presenting a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992). Only if that burden is met, does the burden of
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