Appeal No. 2002-1359
Application No. 09/323,990
between the lysing solution and the cells to cause the lysis of the subject cells during
passage through the mixer...' (emphasis supplied). In the exemplary embodiments,
the residence time is in the range of 4 to 52 seconds.” Brief, page 6. Appellant
concludes that in the method of Wan, “the cells exit the static mixer lysed”, and thus it
would reasonably appear that lysis has been completed during passage through the
mixer. Brief, page 8; Wan, column 2, lines 4-7, 45-47, and column 4, line 19.
We do not find that the examiner has put forth sufficient evidence to support a
prima facie case of obviousness. We agree with appellant that Wan does not disclose
a method in which the flow rates are such that the residence time of the cell suspension
in the mixer is less than the time for lysis to be completed, as claimed. In our view, the
method and examples described in Wan require that the cells exit the static mixer
lysed, and therefore Wan reasonably discloses a residence time in the mixer which is
sufficient for lysis to be completed. In particular, in the example set forth at column 4 of
Wan, the “cell lysate exited the second static mixer lysed.” See also, Figure 1. The
examiner as much as acknowledges this teaching of Wan, in the statement in Paper
No. 4, page 4, wherein the examiner states that “[c]learly residence time is suggested, if
not taught, by Wan et al. and that such time is required to be sufficient for cell lysis to
be completed.” We do not find that Bowe makes up for the failure of Wan to teach a
method for processing cells wherein the dimensions of the mixer and the flow rates are
such that the residence time of the cell suspension in the mixer is less than the time for
lysis to be completed, as claimed.
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