Appeal No. 2005-0543 Page 6
Application No. 09/992,221
Thus, as recognized by appellants, the examiner has changed his
argument supporting the combination of Bentley with the other references. See
Reply Brief, page 1. What the examiner has failed to provide, however, is a
teaching or suggestion of why the ordinary artisan would look to Bentley, which
uses an absorbance and impedence method, based on the Inami, Kim, Hansen
and Hoffman references, which use fluorescent and scattered light. The rejection
thus fails to set forth a prima facie case of obviousness, and based on the record
before us, we are compelled to reverse it.
OTHER ISSUES
Bentley performs his marrow counts using a Cobias-Helios hematological
analyzer. As seen from the abstract of Bentley et al., “Flow-cytochemical
differential leukocyte analysis with quantitation of neutrophil left shift. An
evaluation of the Cobas-Helios analyzer,” Am. J. Clin. Path., Vol. 102, pp. 223-30
(1994), the Cobas-Helios analyzer classifies leukocytes by flow cytochemical
techniques. In our review of the record we find no indication that either
appellants or the examiner discuss the fact that Bentley is drawn to the use of
flow cytometry for analyzing blood samples. Thus Bentley may in fact be the
closest prior art and upon return of the application, the examiner may want to
revisit the Bentley reference.
CONCLUSION
Because the examiner failed to set forth a prima facie case of
obviousness, the rejection under 35 U.S.C. § 103(a) is reversed.
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