Appeal No. 2002-1359
Application No. 09/323,990
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). It is well-established that the
conclusion that the claimed subject matter is prima facie obvious must be supported by
evidence, as shown by some objective teaching in the prior art or by knowledge
generally available to one of ordinary skill in the art that would have led that individual to
combine the relevant teachings of the references to arrive at the claimed invention.
See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).
We note that the examiner has withdrawn a rejection of claims 2-3 and 8-10 in
view of Wan and Bowe. These claims remain objected to, however, as dependent
upon a rejected base claim.
According to the examiner, Wan discloses a method for “processing cells
comprising mixing cells with a lysis reagent and precipitating agent in a flow through
mixer having no motion. The flow rate through the mixer is critical to the efficiency of
the lysis, precipitation and mixing of the agents with the cells.” Paper No. 4, page 4.
The mixer of Wan has a helical structure to cause the mixture to mix together in a
turbulent flow. Id.
The examiner relies on Bowe for the disclosure of “a vortex having a chamber
with a spiral or helical structure to increase flow rate of a fluid passing therethrough for
purposes of mixing. The vortex chamber has a tangential inlet to create a spirally flow
and an axial outlet located centrally of the chamber.” Id. The examiner finds that the
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