Appeal No. 2001-0544 Page 7
Application No. 08/195,048
that it is preferably added to the enzyme in solution. Id., pages 7-8. Finally, the
examiner cited Craig as teaching an assay buffer containing a polyoxyethylene
ether detergent for immunoassays using peroxidase conjugates, and suggesting
that a further advantage may be realized by including a polyoxyethylene ether
detergent in wash solutions. Examiner’s Answer, page 8.
The examiner concluded that
[i]t would have been obvious to one of ordinary skill in the art to add
phenolic compounds to the assay solutions, including the wash
solutions, in the assays as taught by Kricka et al., since Wehner et
al. specifically teach that the addition of such compounds in
solution, to a solution of peroxidase or peroxidase conjugates, acts
to stabilize the activity of peroxidase and that such compounds can
be added at any desired point of time to the enzyme or enzyme
conjugate and Craig et al. teaches that the addition of alternative
formulations used for the improvement of the performance of
peroxidase conjugates in assays into wash solution specifically, can
produce further advantages in assays.
Id.
We agree with Appellant that the examiner has not made out a prima facie
case of obviousness. It is true that both Kricka and Wehner teach advantages to
using phenol or a phenol derivative in enzyme immunoassays using peroxidase
as the enzymatic label. The advantages disclosed in the prior art, however,
result from including both the phenol and the peroxidase in the same mixture.
Kricka teaches that phenol enhances the activity of the peroxidase enzyme, while
Wehner teaches that phenol stabilizes the peroxidase activity over time. See
Kricka, column 2, lines 38-50 (“[T]here is provided an enhanced luminescent or
luminometric assay, wherein the luminescent reaction is between a peroxidase
enzyme, an oxidant, a chemiluminescent 2,3-dihydro-1,4-phthalazinedione and a
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