Appeal No. 2001-2410 Page 5
Application No. 08/914,700
and the detector substance all can pass through the support.” Finally, the
support is assessed for color development, the presence of color in the defined
zone being indicative of the presence of the analyte in the test sample.
The examiner rejected all of the claims as obvious over the prior art. All of
the examiner’s rejections rely on the combination of Hossom and Leuvering. The
examiner concluded that these references would have rendered obvious the
basic method of claim 1. The examiner characterized Hossom as disclosing all
of the limitations of the claimed method except for the use of colloidal metal as
the label. See the Examiner’s Answer, pages 3-4. She relied on Leuvering to
meet this limitation, and concluded that “[it] would have been obvious to one of
ordinary skill in the art at the time the invention was made to substitute the
enzyme labels of Hossom et al[.] with the metal sol particles of Leuvering
because Leuvering teaches that the use of metal sol particles provides the
additional advantage of a more sensitive assay than the known radio or enzyme
immunoassays.” Id., page 5.
The examiner acknowledged that “Hossom et al[.] do not specifically state
that the filter membrane of their invention has pore sizes that will allow the
passage of any non-complexed reagents.” Id. She concluded, however, that this
limitation was inherently present in Hossom’s disclosure. See id.:
[A] skilled artisan can clearly see that the pore sizes of the instant
invention (0.2 – 12 microns, page 8) are the same with the pore
sizes of the membrane of Hossom et al[.], therefore, it is expected
that the filter of Hossom et al[.] will have the same inherent function
as that of the instant invention, i.e.[,] allowing the passage of the
analyte, the binding substance and the detector substance if a
precipitable complex with an analyte is not formed. And because
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