Appeal No. 2007-0188 Page 8
Application No. 10/683,789
that one should use two or more different reagents to detect varying levels of
blood in a sample.
The same is true of Rittersdorf. Rittersdorf teaches the use of test strips
to detect blood in a mammalian extract. Rittersdorf discloses the possibility of
detecting 5 erythrocytes/mm3 urine (column 2, lines 30-34) and that the detection
of small amounts of blood in mammalian extracts is very important for the
diagnosis of hemorrhages in the stomach, intestines and urinary tract (column 1,
lines 8-11). Rittersdorf does not, however, suggest that one should use two or
more different reagents to detect varying levels of blood in a mammalian extract.
Therefore, even if a person of ordinary skill in the art would have been
motivated to substitute the blood detecting reagents of Ponce or Rittersdorf for
the hydrogen ion detecting reagents of Diehl or Springer, neither Ponce nor
Rittersdorf suggest the detection of different amounts of blood in a mammalian
extract using first and second chemical compositions as required by claim 10.
Therefore we find no reasonable suggestion for combining the teachings
of the references relied upon by the Examiner in a manner which would have
reasonably led one of ordinary skill in this art to arrive at Appellants’ claimed
invention. The initial burden of presenting a prima facie case of obviousness
rests on the examiner. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443,
1444 (Fed. Cir. 1992). On these circumstances, it is our opinion that the
Examiner failed to provide the evidence necessary to support a prima facie case
of obviousness. Accordingly, we reverse the rejection of claims 1, 3-11, 14-20,
22-26 and 28 under 35 U.S.C. § 103 as being unpatentable over the combination
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