Appeal No. 2001-2401
Application 08/277,225
1316 (Fed. Cir. 2000). Thus, with respect to claims 1 and 20 which define a
competitive assay format, we do not find the combination of Pollema and Friguet to
support a prima facie case of obviousness.
With respect to claims 11 and 23, our review of the examiner's rejections and
analysis in the present case have been made difficult, as the examiner has failed to
provide analysis as to why each of the claims argued separately by appellants is
rejected. The examiner has failed to separately argue the rejection of each claim in the
Answer. As best we can determine Woods is relied on by the examiner solely for the
purpose of rejection of the sandwich assay claims 11 and 23.
As with the assay of Friguet, the sandwich assay of Woods would reasonably
appear to be conducted when equilibrium between the antigen and antibody is reached.
For example, the assay time of Example 1 of Woods requires an incubation time of one
hour. Woods, column 7, line 15.
We do not find that the examiner has provided an indication of an appropriate
reason, suggestion or motivation, in either Woods or Pollema, to conduct the sandwich
assay of Woods at a time other than after equilibrium has been reached between the
antigen and antibody. In our view, the only suggestion to combine the cited references
comes from appellants' disclosure. We agree with appellants that the examiner has
not provided evidence of sufficient motivation to combine Pollema and Woods. Nor do
we find that Freytag, describing an affinity-column-mediated immunoenzyomemetric
assay with a dwell time of 75-120 seconds (page 1497, column 2) to overcome the
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