Appeal 2007-2213
Application 10/355,433
same use.”). In addition, we agree with the Examiner that the disclosure in
Okamoto of a viscosity of from 1-15 cps provides a reasonable expectation
of success over this range, including at a viscosity between 7 and 15 cps.
We conclude that the Examiner has set forth a prima facie case that
claim 1 would have been obvious over Brennan and Eckstein in view of
Okamoto, which Appellants have not rebutted. We therefore affirm the
rejection of claim 1 under 35 U.S.C. § 103. Claims 2-4, 9-18, and 21-25 fall
with claim 1.
Claim 5 indirectly depends from claim 1 and requires that, when only
the viscosity enhancer is absent from the drops, they have a viscosity below
9 cps. Appellants argue that “nowhere does Brennan, Eckstein or Okamoto,
alone or in combination, teach or suggest that when the viscosity enhancer is
absent the viscosity of the probe precursor containing drops is below 9 cps”
(Br. 15).
We are not persuaded by this argument. Okamoto describes solutions
containing a viscosity enhancer (e.g., ethylene glycol) and having a viscosity
of 1-15 cps. Because Okamoto teaches solutions containing a viscosity
enhancer that can still have a viscosity below 9 cps, we agree with the
Examiner that the cited references would have made obvious solutions that
have a viscosity of less than 9 cps when the viscosity enhancer is absent.
Claim 7 depends from claim 5 and requires that “sufficient polymer is
present to raise the viscosity of the drops comprising probe precursors by at
least 2 cps.” Appellants argue that “nowhere does Brennan, Eckstein or
Okamoto, alone or in combination, teach or suggest that sufficient polymer
is present to raise the viscosity of the drops comprising probe precursors by
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