Appeal No. 2002-0426 Page 3
Application No. 09/115,797
DISCUSSION
Claim construction:
We begin by construing the claim. “[N]ot unlike a determination of infringement,
a determination of anticipation, as well as obviousness, involves two steps. First is
construing the claim, . . . followed by, in the case of anticipation or obviousness, a
comparison of the construed claim to the prior art.” Key Pharms. Inc. v. Hercon Labs.
Corp., 161 F.3d 709, 714, 48 USPQ2d 1911, 1915 (Fed. Cir. 1998).
As we understand the claimed invention (see e.g., claim 33), the kit comprises
four elements:
1. A first container, containing a solvent for extracting toxins from fish tissue and
for facilitating toxin binding to the membrane;
2. A second container, containing a a suspension of plural detectors in solution
for detecting toxins;
3. At least one support element, wherein a membrane is on a portion of at least
one support element; and
4. A data standard for comparing data and determining ciguatoxin concentration.
According, we will compare the prior art to the claimed invention to determine whether
the prior art teaches a kit comprising the elements identified above.
The rejection over ‘525:
According to the examiner (Answer, page 3), ‘525 teaches a kit for the detection
of ciguatoxin, “which includes at least one support element with a nylon membrane
covering, an antibody coated mixture of latex beads to act as detectors of a toxin, a
testing container, a supply of solvent, and a biopsy tool (abstract).” The examiner also
finds (Answer, page 4) that ‘525 teaches the use of a data standard “prepared from
other tabulated data for known ciguatoxin concentration and corresponding latex bead
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