Appeal No. 2002-1360 Page 11
Application No. 09/133,942
teach a method in which antibodies “are not adhered to an insoluble support,” as
required by claim 1. The rejection under 35 U.S.C. § 103 is reversed.
Other Issues
As discussed above (pages 3-6), the art-accepted meaning of the term
“agglutination” is an assay based on clumping of antibodies or antigens attached
to particulate antigens. “Precipitation”, on the other hand, means formation of
visible complex between soluble antigen and soluble antibody. Thus, the
claimed assay would conventionally be described as based on precipitation,
rather than agglutination. If the examiner’s initial search of the claimed assay
was directed toward art disclosing an “agglutination” assay involving only soluble
components, it probably did not produce the most relevant prior art.
Upon return of this case, the examiner should review the search that was
performed and, if necessary, re-search the relevant sources for assays based on
precipitation rather than agglutination. If a new search turns up prior art that
anticipates or renders obvious the instant claims, entry of new rejections under
35 U.S.C. § 102 and/or 35 U.S.C. § 103 would be appropriate.
We also note that Appellant has submitted two Information Disclosure
Statements since the Examiner’s Answer was filed. The examiner should act on
those IDSs as appropriate under 37 CFR § 1.97.
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