Appeal No. 2002-1562
Application No. 09/183,454
defined in the specification and as claimed.
Likewise, we do not find that the combination of the in vitro diagnostic disclosed
in Osther with Li and Lewis is sufficient to meet the requirements of composition claim
25. In particular, it would reasonably appear that the secondary references, Li and
Lewis, provide a radiolabeled linker to improve the in vivo clearance of the radiolabel by
the liver when administered to treat cancer or tumors. We do not find that the
secondary references provide reason, suggestion or motivation to substitute an
radiolabeled linker for use in vivo, for a conventional radiolabel in an in vitro diagnostic
sandwich assay for HIV infection, as described in Osther. Thus, we find no reason to
modify the in vitro diagnostic assay described in the primary reference, Osther, to
include the bifunctional linkers of Li and Lewis. Without motivation to combine the cited
references for the treatment of pathogens, and with no evidence of other motivation to
combine the cited references to arrive at the claimed composition, we do not find the
examiner has provided sufficient evidence to support the rejection of the method of
treatment or composition claims.
The rejection of the claims 35 U.S.C. 103(a) for obviousness over Osther in view
of Li and Lewis is reversed.
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