Appeal No. 2003-1679 Page 8
Application No. 08/993,010
Claim 20 is drawn to a method of monitoring a human subject undergoing
therapy for Helicobacter pylori infection comprising, inter alia, the method of
detecting Helicobacter pylori antibodies as set forth in claim 1.
The combination of Figura in view of Xiang and Crabtree was discussed
above. While not clearly articulated by the examiner (see Answer, pages 9 and
28-29), it appears that the examiner relies on Telford to teach (bridging
paragraph, pages 421-422), “a simple scheme, in which all H. pylori strains could
be partitioned into two groups, which either express (Type I) or do not express
(Type II) the cytotoxin [VagA] and the CagA proteins.”
We note, however, that Telford published before either of the Figura or
Xiang references. As discussed above, with regard to Figura and Xiang, the later
published evidence on this record teaches away from the “simple scheme”
discussed by Telford. To establish a prima facie case of obviousness, the
examiner must show “some objective teaching in the prior art or that knowledge
generally available to one of ordinary skill in the art would lead that individual to
combine the relevant teachings of the references.” In re Fine, 837 F.2d 1071,
1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). There is no suggestion to
combine, however, if a reference teaches away from its combination with another
source. See id. at 1075, 5 USPQ2d at 1599. “A reference may be said to teach
away when a person of ordinary skill, upon reading the reference, would be
discouraged from following the path set out in the reference, or would be led in a
direction divergent from the path that was taken by the applicant ... [or] if it
suggests that the line of development flowing from the reference’s disclosure is
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