Appeal No. 2001-2401
Application 08/277,225
specification would readily understand that no separation step is required. Reply Brief,
page 2. In our view, with respect to the lack of a recited separation step in the claims,
we find the examiner has not met his burden of proof by advancing acceptable
reasoning of indefiniteness. For example, the examiner has made no reference to the
specification indicating that such a separation step is required in the claimed method.
Moreover, we find that when the claim language, “portion of a tag,” is read in
view of the disclosure, as required, its meaning is clear, and thus the metes and bounds
of claim 1 are not indefinite. For example, the specification pages 20 states ?Two
signals are measured, one arising from the reference liquid and one arising from the
sample.” Specification, pages 20-21. The phrase, “portion of a tag” would appear to
refer to the tag retained on the solid phase upon formation of said first ligand/second
ligand complex in the test sample. It is to be compared with the tag retained on the
solid phase using a known amount of analyte to determine the presence or level of the
analyte in the sample.
In view of the above, the rejection of claims 1-10 under 35 U.S.C. § 112, second
paragraph as being indefinite is reversed.
35 U.S.C. § 103
Claims 1-5, 8-14, 16-21 and 23-25 stand rejected under 35 U.S.C. § 103 as
obvious over Pollema in view of Friguet and Woods. Claims 6-7, 22 and 25 stand
rejected over the above combination of references, in further view of Freytag.
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