Appeal No. 2002-0426 Page 6
Application No. 09/115,797
invention to include a fixation reagent and an extraction reagent in separate
containers. This, however, is not appellants’ claimed invention.
We find nothing in Park, and the examiner does not identify any disclosure
in Park wherein a solvent is identified as being useful for both extracting toxins
from fish tissue and for facilitating toxin binding to the membrane. Since the
examiner misinterpreted the claimed invention we are compelled to vacate the
rejection of claims 2-7, 9, 11-20, 22-26 and 33 under 35 U.S.C. § 102(b) as
anticipated by Park and remand the application to the examiner for further
consideration.
The rejection over Park in view of ‘392:
The examiner relies on Park as discussed above. The examiner recognizes,
however, that “Park does not teach the use of sodium azide.” Answer, page 8. To
make up for this deficiency the examiner relies on ‘392. According to the examiner (id.),
‘392 teaches, inter alia, a kit consisting of a tissue sampling bamboo stick used to
collect a tissue sample, a vial containing a fixation reagent preferably methanol, and a
vial B containing a Tris/sodium azide buffer.
However, as discussed above, we find nothing in Park, and the examiner does
not identify any disclosure in Park wherein a solvent is identified as being useful for both
extracting toxins from fish tissue and for facilitating toxin binding to the membrane. The
same is true of ‘392. Instead, the examiner appears to read the limitations of Park and
‘392 as teaching separate containers of, inter alia, fixation reagents, and carriers. This,
however, is not appellants’ claimed invention.
Since the examiner misinterpreted the claimed invention we are compelled to
vacate the rejection of claims 2-8, 11, 17-24, 26, 27 and 33 under 35 U.S.C. § 103 as
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