Appeal No. 2006-1420
Application No. 09/933,000 Page 3
GROUNDS OF REJECTION
Claims 11 to 17 stand rejected under 35 U.S.C. § 103(a) as obvious over
JP ‘065 in view of EP ‘222.
Rather than reiterate the conflicting viewpoints advanced by the Examiner
and the Appellants regarding the above-noted rejection, we make reference to
the Answer (mailed September 29, 2005) for the Examiner's reasoning in support
of the rejections, and to the Briefs (filed March 1, 2004 and July 2, 2004) for the
Appellants’ arguments there against.
OPINION
Upon careful review of the respective positions advanced by Appellants
and the Examiner, we affirm the rejection of claims 11 to 17 for the reasons
expressed in the Answer and add the following for emphasis.
Appellants’ arguments for patentability are not persuasive. Appellants
have chosen to not address the Examiner’s basic position that it would have
been obvious to modify the cover of the test apparatus of JP ‘065 to have a black
color. Instead, Appellants’ arguments focus on the differences between the EP
‘222 reference and the claimed invention. It is not disputed that JP ‘065
discloses a test apparatus for assaying a component in a liquid sample by
measuring a reflected light. The recognized distinguishing feature between the
apparatus of JP ‘065 and the claimed invention is the color of the cover (5). The
claimed invention specifies the color is black while JP ‘065 is silent. The present
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