Appeal No. 2007-1027 Page 5
Application No. 10/134,575
For the reasons discussed above, we find that New teaches a composition
comprising a bile salt, a special stain and cells. The examiner relies on Leung to
teach “rapid staining methods for the identification of Helicobacter pylori using
Deleted: Id.
Alcian Yellow stain. (Answer, page 3.) According to the examiner (Id., page 4), Deleted: Answer
Deleted: 10
“it would have been prima facie obvious to one of ordinary skill in the art at the
time of the invention to have incorporated the Alcian Yellow stain for staining H.
plyori as taught by Leung et al. with the bile salt composition as taught by New.”
We disagree.
Deleted: plyori
Leung teaches a method for staining H. pylori. Leung’s method is set forth
on page 132, column 1. As can be seen from Leung’s disclosure (id.), the
method comprises not only the addition of Alcian Yellow but also toluidine blue
and other reagents in a specific sequence of method steps resulting in blue
bacteria on a yellow background. Leung, page 131, column 2. Leung does not
teach the addition of Alcian Yellow alone, in any willy-nilly manner, or with other
reagents not specifically identified in the method. Accordingly, we disagree with
the examiner’s intimation that a person of ordinary skill in the art would have
found it prima facie obvious to combine Alcian Yellow with New’s composition
with the intent of staining H. pylori. There is no evidence on this record to
suggest that the compositions of New and Leung could be combined in the
manner suggested by the examiner. Accordingly, we reverse the rejection of
claims 5-10 under 35 U.S.C. § 103 as being unpatentable over the combination
of New and Leung.
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