Appeal No. 2001-2271 Page 6
Application No. 08/971,839
stand or fall with claim 1. Accordingly, the rejection of claims 1, 2, 7, 10 and 11 is
affirmed.
The Rejection of Claims 1, 2, 7, 10 and 11
Claim 3 specifies that the biological agent is calcein or oxytetracycline
hydrochloride, neither of which is disclosed by Zohar or Heat Systems Ultrasonics.
Thus, the examiner relies on Monaghan and Mohler as evidence that both were well
known in the art as chemical markers “especially when mass-marketing larval fish for
long-term hatchery product evaluation” (Answer, page 8). Appellants argue that the
Monaghan and Mohler references “are not relevant to the claimed distinction involved
herein,” i.e., maintaining a constant temperature during ultrasonification, “even though
they are relevant to other limitations of the second group of claims” (Brief, page 5).
Inasmuch as we have found no error in the examiner’s determination that Zohar
and Heat Systems Ultrasonics are sufficient to establish that “it would have been prima
facie obvious . . . to maintain the temperature constant at a temperature . . . during [ ]
ultrasonic . . . infus[ion of] compounds into aquatic organisms,” and appellants agree
that Monaghan and Mohler “are relevant to other limitations of the second group of
claims,” we affirm the examiner’s rejection of claims 3-5, 8 and 13 as well.
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