Appeal No. 2001-1173 Page 6
Application No. 08/614,593
diluted antibiotic solutions [and] … [cell viability] was judged.” Alternatively, the
examiner relies (id.) on Gjaltema to teach “a reactor where twelve removable
slides are fitted and rotated to form a continuous flow stirred tank reactor.”
The examiner relies (Answer, page 6) on Darouiche to teach cultures in
separate tubes were incubated in shaking water baths. According to the
examiner (id.), “[i]t would have been obvious to one of ordinary skill in the art at
the time the invention was made to repeatedly change the flow of fluid as taught
by Darouiche in the method of Miyake or Gjaltema….” In addition, the examiner
relies (Answer, page 7) on Woodson to teach “standard techniques for
quantifying bacteria.”
With regard to Miyake, appellants argue (Brief, page 9) that Miyake does
not teach a method wherein the plural biofilm adherent sites share the liquid
growth medium as is required by the claimed invention. While the examiner
recognizes (Answer, page 9), “the present invention is directed to … a shared
liquid growth medium across an array of biofilm adherent sites…,” the examiner
fails to explain how the combination of Miyake in view of Darouiche and
Woodson, results in a method wherein “plural biofilm adherent sites share the
liquid growth medium.” Therefore, it is our opinion that the examiner failed to
meet his burden of providing the evidence necessary to establish a prima facie
case of obviousness based on the combination of Miyake in view of Darouiche
and Woodson.
With regard to Gjaltema, appellants explain (Brief, page 9), “Gjaltema
differs from the claimed invention in claim 1 in that the flow direction is not
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