Appeal No. 1999-1423
Application 08/261,639
35 U.S.C. § 103
Claims 48, and 50-60 stand rejected under 35 U.S.C. § 103 over Tzeng and
Berry.
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness is
established when the teachings from the prior art itself would appear to have suggested
the claimed subject matter to a person of ordinary skill in the art. In re Bell, 991 F.2d
781, 783, 26 USPQ2d 1529, 1531 (Fed. Cir. 1993). An obviousness analysis requires
that the prior art both suggest the claimed subject matter and reveal a reasonable
expectation of success to one reasonably skilled in the art. In re Vaeck, 947 F.2d 488,
493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991). With this as background, we analyze
the prior art applied by the examiner in the rejection of the claims on appeal.
The examiner suggests that Tzeng teaches the basic concept of the present
invention. According to the Examiner, Tzeng describes the second antigen as being
the same as the first antigen and is to be fixed at a second location to capture the
mobile antigen and analyte antibodies. Tzeng, also, teaches one how to conjugate
BSA and metal sols to the antigen and that such techniques are well known in the art.
Tzeng describes a device that is not only subdivided into reactive regions, but that
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