Appeal No. 2000-0122
Application No. 08/309,925
Appellants argue that there is no disclosure in Rosenthal of
transport of fluid through the support (Brief, page 6; Reply Brief,
page 2). Appellants submit that an essential feature of Rosenthal
is that the sample materials are immobilized onto the carrier
matrix, i.e., not transported through it (id.). Appellants’
arguments are not persuasive. See Gechter v. Davidson, 116 F.3d
1454, 1457, 43 USPQ2d 1030, 1032 (Fed. Cir. 1997)(The claims must
first be correctly construed to define the scope and meaning of any
contested limitations). As correctly argued by the examiner, claim
43 on appeal only requires a “capability” of transporting fluid
contacting the first surface to the second surface, not any
structural limitations (Final Rejection, Paper No. 11, page 3).
See In re Morris, 127 F.3d 1048, 1054, 44 USPQ2d 1023, 1027 (Fed.
Cir. 1997)(Claim language must be construed as broadly as
reasonably possible, as read in light of the specification and
interpreted by one of ordinary skill in the art). The examiner
finds that, as the punching device of Rosenthal punches through the
carrier matrix, fluid is transported from the first surface to the
second surface and subsequently to the adjacent collection plate
and wells, even though the fluid of Rosenthal is transported as
immobilized on the carrier matrix (id., see also Rosenthal, col.
11, ll. 36-42).
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