Appeal No. 1999-1384
Application No. 08/583,912
that includes a membrane positioned perpendicular to sample flow in addition to
a pump” [emphasis removed]. In this case, the support media of Ligler and the
membrane of Kidwell both serve as support media. See Ligler, Fig. 2, #33 and
column 8, line 54 through column 9, line 40; and Kidwell, Fig. 2, #223, column 4,
line 41 through column 6, line 44. Where, as here, the prior art recognizes two
components to be equivalent, an express suggestion to substitute one for
another need not be present in order to render such substitution obvious. In re
Fout, 675 F.2d 297, 301, 213 USPQ 532, 536 (CCPA 1982).
However, while we recognize that Ligler discloses (column 10, lines 29-
30) that “picomoles of antigen can be detected under continuous flow rates as
fast as 0.8ml/min,” Ligler does not disclose the flow rate, interaction time or
expected sensitivity of a system with a membrane support. While the membrane
support of Kidwell, can be substituted for the Ligler support, sensitivity, flow rate
and analyte-support interaction time are expected to be different than Ligler’s.
On this record, the only prior art disclosure of appropriate analyte-support media
interaction times for a membrane based support media is found in Kidwell.
The examiner is correct in that the “discovery of an optimum value of a
result effective variable in a known process is ordinarily within the skill of the art,”
In re Boesch, 617 F.2d 272, 276, 205 USPQ 215, 219 (CCPA 1980) (citations
omitted). However, in Boesch 617 F.2d at 206, 205 USPQ at 219:
appellants’ specification [disclosed] that certain precipitate-
hardened nickel base alloys, after being exponsed to elevated
temperatures for prolonged periods of time, suffered “from a
marked and catastrophic decrease in room temperature ductility
and a marked increase in the rate of creep deformation.” It was
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