Appeal No. 2002-1361 Page 5
Application No. 09/476,822
takes place, it would appear the invention would not work because a waiting
period is required.” (Examiner Answer, page 5). If the invention would not work,
however, that is more properly a first paragraph, enablement rejection, and not a
second paragraph rejection. Moreover, the specification defines an incubating
step as incubation of the sample in selective growth media over a period of days,
id. at 12, which is different than a “waiting step” to allow the urease substrate to
react with the urease.
The examiner’s third concern about the correlating step is not understood,
as the claims recite the presence or absence of a color change is correlated to
the absence or presence of Helicobacter Pylori infection in the sample.
The examiner’s last concern appears to be what causes the color change
is not specifically set forth in the claims. As discussed above with respect to the
first paragraph rejection, the recitation of a urease detecting pad implicitly
requires that the pad contain a color pH indicator, and thus one skilled in the art
would understand the claims.
The examiner’s rejections under 35 U.S.C. § 112, second paragraph, are
reversed.
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