Appeal No. 1999-1326
Application No. 08/413,294
depressed and form a ‘flat’ configuration” (Answer, page 4), we note, simply, that
we find no explicit description in Mull of depressing either the flexible plastic tube
into a flat pouch or the reagent strip into a flat configuration. Thus, Mull does not
describe all of the elements of the claimed invention. Therefore, the examiner has
failed to demonstrate that Mull anticipates the claimed invention within the meaning
of 35 USC § 102(b).
Furthermore, with regard to the § 103 aspect of the rejection, the examiner
has not explained why a person of ordinary skill would have been led from “here to
there,” i.e., from the elongated and flexible plastic tube of Mull to the “flat pouch“ of
claim 1 or the reagent strip with a “flat configuration” of claim 7. We find nothing in
Mull which would have reasonably suggested a modification of the flexible plastic
tube or the swab type collector described therein in a manner to arrive at the
claimed invention. The fact that the prior art could be so modified would not have
made the modification obvious unless the prior art suggested the desirability of the
modification. In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir.
1984). Here, the examiner has not provided those facts or evidence which would
have suggested the modifications of the pouch and reagent strip and pad described
by Mull, in a manner to arrive at the claimed invention. Thus, in our opinion, the
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