Appeal 2007-0393
Reexamination Control 90/006,786
Patent 6,497,843
1 The level of skill in the art
2 F. 29. The person having ordinary skill in the art would have understood the
3 principles of operation of the assay device and method of urinalysis claimed
4 in the 620 patent.
5 F. 30. The person having ordinary skill in the art would have understood that
6 urine must be brought into contact with the assay strips in order to detect the
7 presence or absence of the drugs of interest.
8 F. 31. The person having ordinary skill in the art would have understood that
9 the urine was brought into contact with the assay strips by means of capillary
10 action in the wicking means.
11 Issue
12 The Examiner contends that Claims 1-4 and 6-12 are unpatentable as
13 obviousness-type double patenting of Claims 4 and 6 of Patent 6,379,620.
14 Specifically, the Examiner contends that the “selection of one particular
15 wicking structure from those clearly encompassed by means plus function
16 language would have been obvious to one of ordinary skill in the art.”
17 Examiner’s Answer 4.
18 Patentee contends that the subject matter of Claim 1 would not have
19 been obvious from the subject matter of Claims 4 and 6 of the 620 patent.
20 Specifically, Patentee contends that the different configurations of the
21 wicking material are not art recognized equivalents and that the requirement
22 that the urine “solely wick up” the wicking material provides certain
23 advantages.
24 The issue before us is whether it would have been obvious to the
25 person having ordinary skill in the art to employ a wicking material
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