Appeal 2007-1132
Application 10/036,999
to an attenuation level2 of one-half and the detector gain is set to maximum
(Bengtsson, col. 6, ll. 10-13). Similarly, Bengtsson teaches that the
calibration scan is performed with an interrogating light wherein the initial
settings of the attenuation (e.g. excitation signal power) and gain are half-
power and maximum respectively (Bengtsson, col. 2, ll. 23-26). We find no
requirement in Appellants’ claim 1 that requires the interrogating light to
vary during the scanning operation.
As to the requirement in Appellants’ claim 1 that the first site is
outside an area occupied by the array, we find that if a sample was scanned
to determine the location of a microarray contained thereon as taught by
Bengtsson, one would start the scan in an area outside of the area occupied
by the array to facilitate the identification of the edges of the array. “When
there is a design need or market pressure to solve a problem and there are a
finite number of identified, predictable solutions, a person of ordinary skill
has good reason to pursue the known options within his or her technical
grasp. If this leads to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense. In that instance the fact
that a combination was obvious to try might show that is was obvious under
§ 103.” KSR Int’l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1742, 82 USPQ2d
1385, 1397 (2007). In our opinion, when attempting to identify a
microarray’s location on a sample, there are a finite number of starting
points (e.g., an area outside of the microarray).
Since Bengtsson utilizes a low-resolution scan to perform this locating
operation, the first site scanned, as well as the remainder of the sample,
2 According to Bengtsson, a variable laser attenuator controls the excitation
signal power that is delivered to a sample (Bengtsson, col. 3, ll. 32-34).
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