Appeal No. 2001-2027 Page 3
Application No. 09/059,573
step after activating lymphocytes and before lysing the specific subset of lymphocytes
and measuring the ATP levels as taught by Melnicoff.@2 Examiner=s Answer, paper no.
27, page 4.
Appellant, while Anot conced[ing] that combining the cited prior art [is]
appropriate in the present case,@ asserts that the examiner=s proposed combination
would not, in any case, result in Adetection of lymphocyte activation.@ Amended Brief,
paper no. 26, page 7. Appellant argues that the examiner has ignored the Adistinct
difference between activation and the subsequent proliferation event that is seen
following activation@ (Id., page 11), and notes that Ishizaka Aspecifically discloses that
the ATP levels observed [were] due to an increase in the number of cells through the
proliferative response of the lymphocytes@ (Id., page 8), whereas the claims on appeal
are directed to measuring Athe increase in the level of ATP . . . during the activation
event and prior to proliferation@ (Id., page 9).
In our view, this argument is not entirely satisfactory. The claims on appeal do
not explicitly recite any particular time frame, and it is not clear to us that the recitation
Adetecting activation@ implicitly limits the claims to measurements taken Aprior to
proliferation.@ The record establishes that activation precedes proliferation in a
stimulated lymphocyte culture, and that the level of ATP, an Aactivation-correlated
intracellular component,@ is elevated during both activation and proliferation. It seems
2 The examiner=s statement is somewhat misleading. Ishizaka, not Melnicoff, describes
measuring endogenous ATP. Melnicoff measures a detectable reporter substance incorporated by a
mixed population of unstimulated cells prior to their separation into subsets and subsequent lysis.
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