Appeal No. 2005-0549 Page 3
Application No. 09/946,424
as anticipated by Lough is readily seen when the breadth of claim 1 is recognized.
Claim 1 in its broadest sense merely calls for a substrate having a test site identifiable
by its position on the substrate, a single microsphere in proximity with the test site
attached to a ligand that specifically binds with one of the analytes and at least one
attachment point disposed on the test site which retains the microsphere in proximity to
the test site. When it is understood that the substrate may have a single test site, it is
seen that the substrate itself becomes the test site. In this embodiment, claim 1 simply
reduces to a substrate having a microsphere attached thereto wherein the microsphere
has a ligand attached to it that specifically binds with one of the analytes. Lough clearly
describes such an apparatus as seen from viewing Figure 1 of the patent that
figuratively illustrates a test apparatus comprising a surface/substrate, a bead attached
to the surface and a ligand attached to the bead that will specifically bind with one of the
analytes.
The main argument presented by appellant in response to the rejection based
upon Lough is that the examiner has misapplied Lough as describing supports to which
the beads are attached that form spatially defined arrays. Appeal Brief, page 5.
However, this argument is more specific than claim 1 on appeal. Claim 1 does not
require a spatially defined array. As set forth above, claim 1 reads upon a substrate
having a single microsphere attached thereto having a ligand that specifically binds with
one of the analytes. Lough clearly describes such an apparatus.
The examiner’s decision is affirmed.
No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR § 1.136(a).
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