Appeal No. 2002-0426 Page 5
Application No. 09/115,797
§ 102(b) as anticipated by ‘525 and remand the application to the examiner for
further consideration.
The rejection over Park:
According to the examiner (Answer, pages 5-6):
Park teaches a kit for the detecting the [sic] presence of ciguatoxin …
which comprises supports for binding toxin, a fixer for fixing toxin to the
support, an assay reagent, and a buffer solution for washing the fixed
toxin-bound supports. The fixation reagent, assay reagent and wash
solution inherently are supplied in separate containers. … The LIQUID
PAPER-coated end or membrane end of a “test” support is inserted into
the incision to contact the fish sample (col. 4[,] lines 3-5).
According to appellants’ claimed invention, the first container contains a solvent
for extracting toxins from fish tissue and for facilitating toxin binding to the
membrane. In this regard, the examiner finds (Answer, page 11), “Park teaches
the use of absolute methanol[2] for fixing. Park teaches the incorporation of an
organic solvent into the preparation to reduce the amount of oil left on the
support and aids in drying of the support after impregnation with the okadaic acid
composition.” The examiner is correct in that Park teaches the use of absolute
methanol as a fixation reagent. See Park, column 8, lines 30-31. The examiner
is also correct in that Park teaches the use of mixtures of oil in butanol, or oil in
hexane, as a carrier. However, what the examiner appears to have missed is
that appellants’ claimed invention comprises a first container, containing a
solvent for both extracting toxins from fish tissue and for facilitating toxin binding
to the membrane. It appears that the examiner has misinterpreted the claimed
2 We note that the ‘525 patent teaches the use of absolute methanol as an extraction reagent. See ‘525,
column 4, lines 40-54, “[t]he solvent is preferably absolute methanol … the fish tissue is immersed in the
methanol for a sufficient amount of time to form a fish extract.”
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