Appeal No. 2001-1409 Page 5
Application No. 09/044,214
saliva samples were obtained by either the use of cotton swabs or
the collection of free saliva following salt stimulation. A filter is a
porous substance through which a liquid or gas is passed . . . in
order to remove constituents such as suspended matter. The
cotton balls used for obtaining the saliva samples taught by Archetti
are a filter. Further, it was taught by Archetti that the saliva
samples were then homogenized by adding 3-mm beads and
vortexing prior to assaying and it was well known to those of
ordinary skill in the art at the time the invention was made that
samples should be treated prior to use in an assay in order to
achieve more accurate results. Samples are commonly
centrifuged, separated by a filter or collected by a filter prior to use
in assays and the incorporation of a separation device, albeit a
column or filter would have been an obvious addition to the kit
disclosed by Todd at the time the invention was made because
Archetti et al. specifically teaches [sic] the use of a filter when using
saliva samples, i.e., cotton balls.
Id., pages 3-4.
Appellants argue that the cited references do not support a prima facie
case of obviousness. See the Appeal Brief, pages 11-14 (emphasis in original):
TODD teach only a dipstick assay wherein the solid phase
substrate is immersed into an antibody labeled reaction mixture and
relies on chemical binding of the antigen to the membrane. TODD
is not concerned with filtering of the saliva. . . . Moreover, TODD is
a one step method which teaches away from the multi-step
methods as time-consuming. TODD is an assay with reaction
times that vary from 15 minutes to several hours over a variety of
different environmental conditions. . . . [The claimed invention] is a
five minute, dry test, conducted at room temperature, which makes
it very useful in a doctor’s office or other clinical setting. The
recited sample filter prevents the particulates from being trapped
with the antibodies and antigen of interest. Thus, TODD does not
anticipate nor suggest the claimed immunodiagnostic kit nor the
immunodiagnostic method.
. . . .
The secondary reference, ARCHETTI, merely adds the concept of
homogenization. . . .
. . . Homogenization does not filter out particulates but merely
disperses them, thus it is not applicable to the instant invention.
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