Appeal No. 2003-1017 Page 4
Application No. 08/287,358
resolution” (id., page 16).
Anticipation
“[E]very limitation of a claim must identically appear in a single prior art reference
for it to anticipate the claim.” Gechter v. Davidson, 116 F.3d 1454, 1457, 43 USPQ2d
1030, 1032 (Fed. Cir. 1997). Moreover, “the Patent Office has the initial burden of
coming forward with some sort of evidence tending to disprove novelty.” In re Wilder,
429 F.2d 447, 450, 166 USPQ2d 545, 548 (CCPA 1970).
Claims 15, 17-28, 36-39 and 41-44 stand rejected under 35 U.S.C. § 102 (b) as
anticipated by Akong. Claims 15, 17, 18, 27, 28, 39 and 41 require, inter alia,
projecting excitation radiation uniformly onto a multi-well plate, thereby illuminating both
the wells and the portion of the plate disposed between the wells; claims 19-26 and 42-
44 require receiving an image of emissions from multiple wells simultaneously over a
period of time, wherein the image comprises an entire view of each of the wells; and
claims 36-38 require displaying a graphical representation of fluorescence emitted from
each well of a multi-well plate, in real or pseudo real time, wherein the graphical
representation indicates the arrangement of the wells on the plate. Although the
examiner does not address any of these limitations in the statement of the rejection
(Answer, pages 4-5), he nevertheless concludes that “[a]ll the features of the present
claims are taught by Akong for the same function as presently claimed” (id., page 5).
Appellants argue that Akong fails to disclose “projecting excitation radiation
uniformly in the manner [required]” (Brief, page 29); moreover, Akong does not disclose
“receiving an image of each of a plurality of wells, [much less] an image comprising an
entire view of each of the wells” (id., page 31). “[I]nstead[, Akong] discloses individual
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