Appeal No. 2001-2521 Page 9
Application No. 08/738,464
alia, “a detection means for monitoring the column eluate for analyte comprised
of an analyte detection cell . . . and a reference cell.” Paper No. 2, page 8. He
concluded that
[it] would have been obvious to a person of ordinary skill in the art
to substitute the piezoelectric detector of Myerholtz in the
automated chromatographic system taught by Ligler et al. because
Ligler et al[.] teach the importance of being able to detect analyte in
real time without the need for testing individual samples (column 4,
lines 5-18; column 6, lines 3-6) and the sensor taught by Myerholtz
et al., in which the liquid stream flows in parallel over the sample
and reference devices in order to synchronize their exposure cycles
. . . would give real time measurements of analyte concentration.
Id.
When determining obviousness, “the prior art as a whole must be
considered. The teachings are to be viewed as they would have been viewed by
one of ordinary skill.” In re Hedges, 783 F.2d 1038, 1041, 228 USPQ 685, 687
(Fed. Cir. 1986). “It is impermissible within the framework of section 103 to pick
and choose from any one reference only so much of it as will support a given
position, to the exclusion of other parts necessary to the full appreciation of what
such reference fairly suggests to one of ordinary skill in the art.” Id.
In this case, we agree with Appellants that the cited references, when
considered in their entirety, would not have suggested the instantly claimed
method. The method disclosed by Ligler is based on displacement of labeled
analyte by unlabeled analyte that is present in the sample. See column 4, lines
19-27, and Figure 2. The detector that is used in the system therefore must
detect not just analyte, but labeled analyte. See column 4, lines 19-27: “[The]
objects of the invention are accomplished by a method of detecting a target
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