Appeal No. 2007-0056 Page 12
Application No. 09/906,511
was made to incorporate time measurements as taught by Chandler into the
method taught by the combination of Kosako, ‘221, and ‘714.
In response, appellants assert that Chandler teaches away from its
combination with Kosako, ‘211 and ‘978 because Chandler teaches the use of a
different instrument, specifically a flow cytometer, to measure particle size
distribution. Brief, page 8. We are not persuaded by this argument. In our
opinion, that Chandler uses a flow cytometer rather than PIDS to measure
particle size distribution does not address the basis of the rejection – specifically,
that the measurement of particle size distribution as a function of time would
have been prima facie obvious in view of the combination of references relied
upon. A flow cytometer is simply another instrument to measure particle size
distribution. In our opinion, on this record, the recognition in the art of yet
another instrument to measure particle size distribution, without more, does not
lead to a conclusion that Chandler teaches away from its combination with
Kosako, ‘211, and ‘978.
As discussed above the combination of Kosako, ‘211, and ‘978 render the
invention of claim 1 prima facie obvious to a person of ordinary skill in the art at
the time the invention was made. Regarding claim 3, which depends from
claim 1, the examiner finds that Chandler teaches the measurement of particle
size distribution as a function of time as required by appellants’ claim 3. Beyond
establishing that Chandler uses a different instrument to measure particle size
distribution, appellants’ have not provided any evidence or argument as to why it
would not have been prima facie obvious to modify the method taught by the
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