Appeal No. 2003-1017 Page 6
Application No. 08/287,358
each of the first and second tracks defining a set of assay operations in
time, at least a portion of the set of assay operations of the first track to be
performed simultaneously with the second track; and performing at least a
portion of the sets of assay operations on at least one of the plates such
that a portion of the set of assay operations of the second track defined
prior to the at least one critical point is finished before beginning a portion
of the set of assay operations of the first track defined after the at least
one critical point.
Without belaboring the point any more than is necessary, we note that none of
the three obviousness rejections addresses the limitations mentioned above, and again,
the examiner’s response to appellants’ pointed arguments is conclusory and/or
irrelevant. For example, in response to appellants’ argument that neither Bjornson nor
Chow teaches or suggests the uniform illumination required by certain of the claims
(Brief, page 35), the examiner asserts that Chow’s multiple “photometric devices are
capable of simultaneously performing individual assays . . . [which] would read on
‘illuminating both said plurality of wells and all of the portion that is disposed between
each of said [ ] wells’” and that, in any case, “[n]o criticality to the limitation is seen”
(Answer, pages 12-13). Nevertheless, the examiner does not identify any evidence that
Chow teaches or suggests uniform illumination, whatever the theoretical capabilities of
his photometric devices. Moreover, the “criticality” of a limitation is irrelevant if there is
nothing stemming from the prior art to suggest it in the first place.
Similarly, apparently in response to appellants’ assertion that neither Bjornson or
Chow “teaches receiving an image of each of a plurality of wells, let alone an image
comprising an entire view of each of the wells” (Brief, page 36), the examiner argues
“as [the claims are] written, the limitations read on multiple fibers aligned with a plurality
of wells with a single or multiple light source” and Bjornson “impl[ies] that more than one
sample at a time may be measured,” while Chow’s multiple “photometric devices are
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