Appeal No. 1999-1326
Application No. 08/413,294
The reference relied on by the examiner is:
Mull 4,387,725 June 14, 1983
THE REJECTION
Claims 1 - 16 stand rejected under 35 U.S.C. § 102(b) as anticipated by or,
in the alternative, under 35 U.S.C. § 103 as unpatentable over Mull.
On consideration of the record, we reverse this rejection.
DISCUSSION
As stated in In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657 (Fed.
Cir. 1990), “[r]ejection for anticipation or lack of novelty requires, as the first step in
the inquiry, that all the elements of the claimed invention be described in a single
reference.” As indicated above, claim 1, as well as claims 2 - 6 and 14, require a
flat pouch. Similarly, claim 7, as well as claims 8 – 12 and 15 – 16, require that the
reagent strip has a flat configuration. Here, the examiner has not established that
Mull describes either a “flat” pouch or a reagent strip with a “flat configuration” as
required by claims 1 and 7, respectively. To the extent that the examiner urges that
“[t]he Mull disclosure is deemed to broadly encompass the instant limitation drawn
to a ‘flat’ pouch and a reagent pad with a ‘flat configuration’ because Mull teaches a
device in the form of an elongated and flexible plastic tube, which may be
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