Appeal No. 2001-2027 Page 2
Application No. 09/059,573
measuring a level of said activation-correlated intracellular component; and
determining activation of lymphocytes for said selected subset of lymphocytes
from said level of said activation-correlated intracellular component measured in said
measuring step.
The examiner relies on the following references:
Gottlieb 4,778,750 Oct. 18, 1988
Melnicoff et al. (Melnicoff) 5,385,822 Jan. 31, 1995
Ishizaka et al. (Ishizaka), AEvaluation of the Proliferative Response of Lymphocytes by
Measurement of Intracellular ATP,@ Journal of Immunological Methods, Vol. 72, pp.
127-132 (1984)
Claims 1, 32, 33, 35 and 36 stand rejected under 35 U.S.C. ' 103 as
unpatentable over Ishizaka and Melnicoff, while claim 34 stands rejected as
unpatentable over the same references in combination with Gottlieb.
We reverse both of these rejections.
DISCUSSION
The rejection of claims 1, 32, 33, 35 and 36
According to the examiner, Ishizaka describes Aa method for evaluating the
proliferative response of lymphocytes comprising incubating the lymphocytes with
lectins . . . , monokines, lymphokines . . . , and B cell growth factors . . . and measuring
ATP levels,@ while Melnicoff describes Aquantifying subsets of lymphocytes within a
subpopulation of a mixed cell population,@ Aseparating the lymphocytes after incubation
with a reporter substance,@ and Athe use of solutions which lyse the separated
lymphocytes enabling the measurement of a released product.@ Examiner=s Answer,
page 4.
Based on these teachings, the examiner concludes that A[i]t would have been
prima facie obvious . . . to modify the method of Ishizaka [ ] by employing a separation
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