Appeal No. 2002-0780 Page 10
Application No. 09/128,340
explanation as to why a person of ordinary skill in the art would have modified the
sonication methods taught by the prior art to include a buffer or detergent.
Upon return of the application, the examiner should take a step back and
reevaluate the prior art relied upon. If the examiner finds that the rejection
should be made, the examiner should issue an appropriate Office action setting
forth such a rejection, using the proper legal standards and clearly explaining the
facts relied upon in support of such a rejection.
4. Does Robson teach Mycobacteria tuberculosis is heat resistant?
According to the examiner (Answer, page 7), Mycobacteria tuberculosis “is
taught by Robson to be heat resistant (cols. 1-2, all lines).” It appears that the
examiner has misapprehended the Robson reference. Contrary to the
examiner’s statement Robson discloses (column 2, lines 13-22) (emphasis
added):
The heating of Mycobacteria for lysis is advantageous over known
methods for lysis of Mycobacteria which involve the use of caustic
chemicals, time consuming culturing, and mechanical methods
which use the French press, the Hughes press, sonicating probes,
bath sonicators, freeze-thawing, glass beads, the Ribi pressure cell,
and the like (see Table 1).
Upon return of the application, the examiner should take a step back and
reevaluate the prior art relied upon, paying careful attention to exactly what the
reference teaches. If the examiner finds that the rejection should be made, the
examiner should issue an appropriate Office action setting forth such a rejection,
using the proper legal standards and clearly explaining the facts relied upon in
support of such a rejection.
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