Appeal No. 1999-0334 Page 5
Application No. 08/150,747
obvious . . . to use the anti-folate binding protein and species-specific antibodies of
Høier-Madsen [ ] and Litt, respectively, in the folate assay of Gutcho [ ] because Suter
[ ] teach[es] that antibodies directly adsorbed on a solid phase may have reduced
binding due to altered antigen binding sites and Litt teaches that a double antibody solid
phase provides a more stable, reproducible assay reagent.@ In addition, the examiner
maintains that A[t]he skilled artisan would have had a reasonable expectation of
success in using the anti-[folate binding protein] antibodies of Høier-Madsen [ ] with the
species-specific antibodies of Litt or the biotin/streptavidin coupling system of Suter [ ]
to immobilize the folate binding protein in the assay of Gutcho [ ] because Suter [ ] and
Litt teach that using intermediate binding structures for immobilizing the antigen-specific
binding protein provides advantages of increased binding and stability.@ Examiner=s
Answer, pages 4-5.
Appellants argue that A[t]his is not the present invention.@ Brief, page 6. We
agree. Indeed, the combination of elements proposed by the examiner scarcely
resembles the claimed method. We cannot overemphasize the importance of
beginning an analysis of patentability Awith a key legal question -- what is the invention
claimed?@ since A[c]laim interpretation . . . will normally control the remainder of the
decisional process,@ Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1567-68, 1
USPQ2d 1593, 1597 (Fed. Cir. 1987).
According to appellants, each of the prior art references describes using
Areceptors@ or primary antibodies to bind an analyte of interest. Brief, page 7. On the
other hand, A[i]n the present invention antibody to folate binding protein binds folate
binding protein which in turn binds analyte (folate).@ Id., page 6. That is, Athe present
invention uses primary antibody to a binding protein to bind the binding protein, not the
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