Appeal 2006-2686
Application 09/994,495
16, and 19 which stand or fall with claim 1, under 35 U.S.C. § 102(b) over
Franciskovich.
B. The Rejections based on § 103(a)
The Examiner has rejected claims 1-9 and 16-19 under § 103(a) over
Franciskovich in view of Sanadi (Answer 4). With respect to claim 1 on
appeal, we have affirmed the rejection of this claim under § 102(b) over
Franciskovich as discussed above. Since the epitome of obviousness under
§ 103(a) is lack of novelty under § 102, we also affirm the rejection of claim
1, and claims 2-7, and 16-19 which stand or fall with claim 1, for reasons
discussed above. See In re Fracalossi, 681 F.2d 792, 794, 215 USPQ 569,
571 (CCPA 1982). Accordingly, we need not discuss Sanadi with regard to
these claims.
With regard to the above rejection, Appellants only present specific,
substantive arguments with respect to claims 8 and 9 (Br. 21). Appellants
argue that claims 8 and 9 include an adhesive while Sanadi expressly rejects
the use of adhesives because they cause cross-contamination, thus “teaching
away” from the invention (id.).
The Examiner finds that Sanadi teaches alternative sealing devices to
the caps (58) used by Franciskovich to seal the openings (52), suggesting
tray (61) with recesses (73) to replace caps and thus avoid cross-
contamination of the samples (Answer 5 and 12-15). With regard to claims
8 and 9, the Examiner finds that Sanadi discloses that use of an adhesive
tape is well known in the art for sealing the open top of a plurality of wells
(Answer 5). From this finding, the Examiner concludes that the use of any
adhesive to close the open top of a well would have been well within the
ordinary skill in the art (Answer 5-6).
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