Appeal No. 1999-1206 Page 9
Application No. 08/394,608
bit broader than the claims discussed above. The claimed method requires growing the
sample on or in a solid culture medium containing chromogenic β-glucuronidase and β-
galactosidase substrates capable of forming insoluble precipitates of two different
colors, Avisibly distinguishable in daylight,@ and quantifying and identifying the two types
of organisms on the basis of colony color. Claim 33 is directed to a method similar to
the method of claim 28, but is even broader in that it is not limited to identifying
organisms with any particular type of enzymatic activity.
The examiner=s proposed reason or motivation for substituting the chromogens
described by Ley, Sadler and Watkins for Edberg=s indicators in Edberg=s method does
not withstand scrutiny for a number of reasons. Edberg combines various β-
glucuronidase and β-galactosidase substrates in a single vessel, but always in solution.
The color of the solution and its and fluorescence at a given wavelength are
determined by autoanalyzer, and the method only works if the reaction products are
diffusible. The examiner does not explain how or why one skilled in the art would
substitute substrates that form insoluble precipitates for Edberg=s substrates that form
diffusible products. On the other hand, the examiner has not explained why one would
convert Edberg=s format to one requiring solid media. Moreover, even if some of the
chromogens described by Ley, Sadler and Watkins are capable of forming insoluble
precipitates upon enzymatic hydrolysis, the examiner has not identified any two that
form precipitates Avisibly distinguishable [from each other] in daylight,@ as required by
the claims.
Claim 36, directed to a test medium containing two chromogens capable of
forming insoluble compounds of two different colors, is broader still. Yet the examiner
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