Appeal 2007-0725
Reexamination Control 90/006,785
Patent 5,073,484
(Answer at 12). Moreover, as noted by the Examiner, claim 22 does not
contain a limitation requiring that the test solution itself provides the flow.
(Answer at 12).
Thus, Patentee has not shown that immersing the testing medium in
developing fluid as taught by Deutsch is excluded by the rejected claims.
3. Deutsch and Tom
Tom teaches the use of an enzyme as a label for one member of the
ligand/anti-ligand binding pair in an immunoassay as set out above. (FFs
26-28). The Examiner takes the position that the combination of Deutsch
and Tom teach the method of claim 24, i.e., where an enzyme is used as the
label.
Patentee argues that Tom does not satisfy the deficiencies of Deutsch
because Tom does not teach a step of “flowing said solution along the
medium and sequentially through the reaction zone(s) as required by claim
22 [at step (b)] and all claims depending therefrom.” (Br. at 17-18).
Patentee’s argument is misplaced. The Examiner does not rely upon
Tom for the teaching of step (b) of claim 22. Instead, the Examiner states
that Tom teaches the functional equivalence of enzyme labels (required by
claim 24) and radioactive labels as found in Deutsch. (Answer at 5-6).
Patentee’s have not raised, and thus waive, any argument disagreeing with
the Examiner’s statement on this point. In re Watts, 354 F.3d 1362, 1368,
69 USPQ 2d 1453, 1458, (Fed. Cir. 2004).
4. Substantial new question of patentability
Patentee argues that the reexamination is improper as to Deutsch
since it does not raise a substantial new question of patentability. Patentee
17
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