Appeal No. 2001-2401
Application 08/277,225
method of detecting the presence or level of an analyte in a sample is conducted “for a
time sufficiently limited that substantially no dissociation of said analyte/second ligand
complexes occurs while said mixture is in contact with said solid phase”, i.e. equilibrium
is not reached.
Appellants argue there is “no teaching, suggestion or motivation from Pollema,
Friguet and Woods references, alone or in combination, with the knowledge of ordinary
skill in the art, to arrive at the claimed subject matter.” Brief, sequential page 11. We
agree with appellants that the examiner has not provided evidence of sufficient
motivation to combine Pollema and Friguet.
First, the examiner admits that the SIA format of Pollema is not the claimed
assay format. Second, the assay of Friguet must be conducted after the antigen and
monoclonal antibody reach equilibrium in solution. Third, the alleged section of
Pollema on which the examiner relies to support or provide motivation for using the
“technique” of Pollema in other assay formats such as that of Friguet, in our view, has
been misconstrued by the examiner to refer to “short-time antibody binding” when the
“technique” referred to is that of the sequential injection immunoassay. We do not find
that the examiner has provided an indication of an appropriate reason, suggestion or
motivation, in either Friguet or Pollema, to conduct the competitive ELISA assay of
Friguet at a time other than after equilibrium has been reached between the antigen
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