Appeal No. 2006-0703 Page 6
Application No. 09/268,437
Claim 1 requires “a plurality of working electrodes adapted to
quantitatively measure enzymatic reaction product, each working electrode
adjacent to one analyte binding area and separated from the nearest adjacent
analyte binding area by a distance and a common reference electrode for said
plurality of working electrodes wherein said device does not have a means to mix
a sample in said cell.” That is, claim 1 requires a single, i.e., common reference
electrode and a plurality, i.e., more than one, working electrodes. Appellants
argue that Henkens does not teach the limitation of claims 1 and 12 of a common
reference electrode for a plurality of working electrodes, as Henkens requires
separate reference electrodes for each working electrode. See Appeal Brief,
pages 7-8. We agree, and the rejection is reversed.3
The examiner asserts that
Appellant’s contention is contradictory to the teachings of Henkens
[ ]. Specifically, at column 6, lines 33-38, Henkens [ ] teach[es] that
the electrochemical assay device “need not comprise a plurality of
working and reference electrodes, but may comprise a single
working electrode and a single reference electrode.” Henkens [ ]
proceeds to teach that “whether in an array or a single electrode,
the biosensor may optionally include one, i.e. common or more
reference (counter) electrodes,” as recited in the rejected claims.
Examiner’s Answer, page 7.
What Henkens in fact teaches at column 6, lines 33-38, is:
Alternatively, the biosensor need not comprise a plurality of
working and reference electrodes but may comprise a single
working electrode and a single reference electrode. Whether in an
3 Because we have reversed the rejection of claims 1-5 and 12 over Henkens, and affirmed the
rejection of claim 11 over Cozzette, we need not address appellants’ arguments that Henkens is
not a proper reference under 35 U.S.C. § 102(e).
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