Appeal 2006-2372
Application 10/854,708
on the teachings of Jennings, the Examiner concludes that it would have
been obvious to one of ordinary skill in the art at the time of the instant
invention to perform the method of measuring platelet aggregation taught by
Jennings in a single tube to avoid the possibility of contaminating the sample
(id.).
In response, Appellant asserts that “Jennings fails to teach using the
same sample to obtain both the baseline count and the count of unactivated
platelets after combination with the agonist in a single-tube method, as
taught by the present application” (Br. 6). According to Appellant,
“Jennings states that the two-tube, separate-sample method ‘allowed the
flexibility of analysis time without the risk of inaccurate results’ and
‘allowed for duplicate runs of a specimen if questionable results were
initially obtained’” (Br. 6-7). Lastly, Appellant asserts that Jennings uses
the ICHOR hematology analyzer which requires a two-tube, separate-sample
method. (Br. 7.)
Based on the contentions of the Examiner and Appellant, the issue
distills down to whether it would have been prima facie obvious to a person
of ordinary skill in the art at the time the invention was made to perform the
method taught by Jennings in a single tube.
For the reasons set forth above, it is our opinion that the Examiner has
the better argument. But for the use of two separate samples, the method
taught by Jennings is the same as Appellant’s claimed method. There is no
doubt that Jennings does not expressly teach this variation in the
methodology disclosed therein. However, we find that it is proper to “take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ.” See KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727,
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