Appeal 2007-1070
Application 09/467,901
DISCUSSION
Obviousness of claims 1-5, 8-14, 16, and 21-23
Claims 1-5, 8-14, 16, and 21-23 stand rejected under 35 U.S.C. § 103
as obvious over Johansen in view of Johnson and Frank (Answer 3).
A claimed invention is obvious “if the differences between the subject
matter sought to be patented and the prior art are such that the subject matter
as a whole would have been obvious at the time the invention was made to a
person having ordinary skill in the art to which said subject matter pertains.”
35 U.S.C. § 103(a). To make this determination, we consider in the context
of the knowledge and level of skill possessed by a person of ordinary skill in
the art whether such a person would have had reason to combine the prior art
in the fashion claimed by the application at issue. See KSR Int’l Co. v.
Teleflex Inc., 550 U.S. __, 82 USPQ2d 1385, 1396 (2007).
In this case, we find that the Examiner has presented sufficient
evidence that a person of ordinary skill in the art would have had adequate
reason at the time the application was filed to have utilized Frank’s FcεR
molecule in Johansen’s method of detecting specific IgE antibodies. Frank
explicitly states that its FcεR molecule is an improvement over anti-IgE
antibody (i.e., the anti-IgE antibody utilized in Johansen’s method) “because
the use of canine FcεR avoids complications presented by the use of . . . anti-
IgE (i.e., anti-IgE antibodies),” such as non-specific binding (Frank, col. 2,
ll. 19-21; FF 12-13). Frank recognizes that this property is advantageous in
IgE antibody-based detection (e.g., diagnostic, screening) methods and kits
(Frank, col. 2, ll. 14-17; FF 11). The skilled worker would recognize this as
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