Appeal No. 2007-0056 Page 9
Application No. 09/906,511
Kosako addresses the problem of “spurious particles” by measuring the
number of particles in the relevant size ranges “before four or more insoluble
carriers can be aggregated. . . .” Kosako, column 5, lines 47-61. While ‘211 and
‘978 do not speak to “spurious particles”, appellants have not explained why the
PIDS measurement technique could not be used to measure a “spurious particle”
in a sample “before four or more insoluble carriers can be aggregated,” as set
forth in Kosako. Contrary, to appellants’ argument, we find no evidence on this
record to suggest that particle measurement by PIDS could not be used in place
of the device exemplified by Kosako.
Lastly, appellants assert that their claimed invention has an unexpected
advantage over “conventional light-scattering methods” because “the PIDS
methodology . . . provides a more sensitive means in detecting small changes in
the scattering pattern when compared to conventional techniques.” Brief,
bridging paragraph, pages 6-7. According to appellants (Brief, page 7), Kosako
does not mention PIDS at all, and ‘211 and ‘978 do not recognize this advantage
because they “do no suggest application of the technique to analyte detection in
particle-enhanced assays to increase sensitivity.” We disagree.
As set forth in In re Freeman, 474 F.2d 1318, 1324, 177 USPQ 139, 143
(CCPA 1973):
In order for a showing of “unexpected results” to be probative
evidence of non-obviousness, it falls upon the applicant to at least
establish: (1) that there actually is a difference between the results
obtained through the claimed invention and those of the prior art;
and (2) that the difference actually obtained would not have been
expected by one skilled in the art at the time of the invention.
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