Appeal No. 2003-1489
Application No. 09/256,486
a label that is physically practical and useful for the intended
test.
While appellant acknowledges that "[t]he Examiner correctly
observes that there is no recitation of a means to image the
container within the claim,"1 appellant nonetheless argues that
no imaging is performed by Gavin, "[n]or is it disclosed or
suggested that the container within Gavin includes a chamber
having a wall through which a fluid quiescently residing within
the chamber is imageable."2 We agree with the examiner, however,
that the transparency of Gavin's container renders it "fully
capable of performing the imaging function."3 Appellant, in
response, offers only the conclusion that the examiner's finding
"is unfounded and appears to be the product of impermissible
hindsight,"4 but appellant advances no substantive argument which
provides a rationale why the fluid sample in the transparent
container of Gavin is not capable of imaging. Appellant only
repeats what is acknowledged by the examiner, namely, that
1 Page 12 of principal brief, second paragraph.
2 Sentence bridging pages 11 and 12 of principal brief.
3 Page 8 of Answer, first paragraph.
4 Page 12 of principal brief, first paragraph.
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