Appeal No. 2007-0188 Page 6
Application No. 10/683,789
6. The Examiner recognizes, however, that contrary to Appellants’ claimed
invention, both of Diehl and Springer’s wearable article detects a hydrogen ion or
ion aggregate. Id. To make up for this deficiency the Examiner relies on Ponce
and Rittersdorf.
The Examiner finds Ponce teaches a “test for false results in blood
detection using reagents that detect different levels of blood in a sample
(Evaluation of the Results, paragraph 3). . . .” Answer, pages 5 and bridging
paragraph, pages 6-7. The Examiner recognizes, however, that Ponce “fails to
provide motivation to include the chemical compositions in the wearable article of
Diehl [or Springer]. . . .” Id. To make up for this deficiency the Examiner finds
Rittersdorf teaches “that the detection of blood in urine, feces, and vomit allows
for diagnosis of hemorrhages in the urinary tract. . . .” Answer, pages 5 and 7.
Based on this evidence the Examiner finds it would have been prima facie
obvious to substitute Ponce’s reagents for the reagents used in Diehl or
Springer’s wearable article “in order to provide a multi-level alert system capable
of detecting small amounts of blood in urine. . . .” Id.
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness. Only if that burden is
met, does the burden of coming forward with evidence or argument shift to the
applicant.” In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir.
1993), citation omitted. “The test for obviousness is not express suggestion of
the claimed invention in any or all of the references but rather what the
references taken collectively would suggest to those of ordinary skill in the art
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