Appeal 2006-2801
Application 09/989,684
analysis to determine the presence, absence, or quantity of one or more
components in the sample. Virtanen discloses the presence of capillary
channels in the assay site. Thus, we determine that the Examiner has a
reasonable basis to believe that Virtanen teaches an optical disc capable of
quantifying particle agglutinants by determining the amount of the tracking
grooves that are at least partially covered by particle agglutinants.
Appellants have not adequately rebutted the Examiner’s position that
Virtanen’s optical disc possesses the claimed functional characteristics.
Appellants have not addressed the presence of these capillary channels
(tracks) in the assay site of Virtanen. Appellants have also not addressed
how the optical reader described by Virtanen that operates to measure the
presence of the components in the assay on the optical disc differs from the
claimed invention (which indicates that the capillary channels were used to
determine the properties of the assay). As such, it is apparent that the optical
disc of Virtanen (containing capillary channels), would have the same
functional property argued by Appellants. Thus, for the reasons presented in
this decision and those presented by the Examiner, we uphold the examiner's
rejection.
Claims 15-24 stand rejected under 35 U.S.C. § 103(a) as obvious over
Virtanen. In response to this ground of rejection, Appellants rely on the
same reasons presented in the discussion of the rejection of claims 9, 12, 25-
31, 77, and 78. (Br. 10). Appellants have not presented any other specific
arguments directed to the Examiner’s obviousness rejection. In support of
the stated rejection, the Examiner has presented specific statements
regarding the knowledge of persons of ordinary skill in the art and
combining this knowledge with the teachings of Virtanen (See Answer 6).
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