Appeal No. 2006-0703 Page 3
Application No. 09/268,437
Cozzette is relied upon for teaching “a simultaneous electrochemical
assay device (amperometric base sensor) fabricated on a substantially planar
silicon substrate comprising a unit cell for holding a sample,” wherein “[t]he
device has a plurality of working (catalytic) electrodes with identical geometry
and area, i.e. analyte binding area or biolayer, and enzyme incorporated thereto.”
Examiner’s Answer, page 5. Cozzette is also relied upon for teaching that “[t]he
working electrodes on analyte binding areas are overlain and aligned with analyte
specific proteins,” and for teaching “that a plurality of electrodes may be present
in a biosensor for the simultaneous measurement of different analytes using
electrochemical assay procedures (see columns 47-51, column 58, lines 38-48,
column 25, and Figure 4).” Id. at 5-6.
It is axiomatic that in order for a prior art reference to serve as an
anticipatory reference, it must disclose every limitation of the claimed invention,
either explicitly or inherently. See In re Schreiber, 128 F.3d 1473, 1477, 44
USPQ2d 1429, 1432 (Fed. Cir. 1997). We find that Cozzette teaches all of the
limitations of claim 11, and the rejection is affirmed.
Appellants contend that the disclosure of Cozzette is primarily drawn to
the manufacture of microfabricated sensing devices. See Appeal Brief, page 8.
Appellants argue that Cozzette does not “use a single quiescent solution
containing substrate reactive with enzymes bonded to the analyte binding area,”
thus “it cannot be used in the same manner as applicants’ invention.” Id. at 9.
According to appellants, the assay structure of claim 11 is being claimed during
use, and the structures in Figures 3 and 4 “would never be covered with a single
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