Appeal No. 2001-1587
Application No. 08/506,268
by an eluant liquid. In Fitzpatrick’s assay, the sample is applied in a liquid to one
end of the test strip, and interacts with various other components as it is drawn
through the strip by capillary action. See column 1, lines 46-65:
The assay method of the present invention provides for moving a
sample suspected of containing an analyte through three zones. . . .
[S]ample is applied to the first zone, and movement of sample
through the first zone mobilizes receptor. If analyte is present in
the sample, analyte and receptor will bind to form a stable receptor-
analyte complex. The receptor-analyte complex moves through the
second trap zone, substantially unaffected by the immobilized
ligand, and into the third zone, where it is detected.
Fitzpatrick differs from the instant claims in that it does not teach, at least,
the limitation of “maintaining contact of the planar surface [of the test strip] by the
wiping surface.” With respect to this limitation, the examiner argues that
“[m]aintaining contact between the swab and the test strip would fall with[in]
routine maximization of analyte sample transfer techniques.” Examiner’s
Answer, page 7. However, he cites no evidence to support this assertion.
The examiner’s position appears to be based on hindsight. The examiner
has cited no evidence to show that maintaining contact between a swab and a
test strip was a routine method of transferring sample. The examiner’s
unsupported assertion is not enough to show that this limitation would have been
obvious to those of skill in the art. See In re Lee, 277 F.3d 1338, 61 USPQ2d
1430 (Fed. Cir. 2002). See also W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721
F.2d 1540, 1552, 220 USPQ 303, 312-313 (Fed. Cir. 1983): “To imbue one of
ordinary skill in the art with knowledge of the invention . . . , when no prior art
reference or references of record convey or suggest that knowledge, is to fall
6
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007