Ex Parte Anderson

Board of Patent Appeals and Interferences

Jun 15, 2009

10170214 (B.P.A.I. Jun. 15, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/170,214 06/13/2002 David Anderson 05900006AA 5310
30743 7590 06/16/2009
WHITHAM, CURTIS & CHRISTOFFERSON & COOK, P.C.
11491 SUNSET HILLS ROAD
SUITE 340
RESTON, VA 20190
EXAMINER
JUNG, UNSU
ART UNIT PAPER NUMBER
1641
MAIL DATE DELIVERY MODE
06/16/2009 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte DAVID ANDERSON
__________

Appeal 2009-0327
Application 10/170,214
Technology Center 1600
__________

Decided:1 June 16, 2009
__________

Before DONALD E. ADAMS, ERIC GRIMES, and FRANCISCO C.
PRATS, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to products
intended for use in immunoassays. The Examiner has rejected the claims as

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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obvious in view of the prior art. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.
STATEMENT OF THE CASE
The Specification discloses products in which “a target compound
capable of binding a chemical of interest is partitioned into a porous
nanostructured material, preferably a nanostructured liquid or liquid
crystalline particle or material” (Spec. 8: 11-13).
“In a competitive assay . . . , the chemical of interest will diffuse into
the porous nanostructured liquid or liquid crystalline particle or material and
bind to the target” (id. at 8: 16-19). A “displaceable chemical such as an
enzyme group or the like will be displaced by the chemical of interest and
will diffuse out of the porous nanostructured liquid or liquid crystalline
particle or material and react with a marker compound to indicate binding has
occurred” (id. at 8: 19-23).
“In a sandwich assay application . . . , a ligand is bound to the target
within the porous nanostructured liquid or liquid crystalline particle or
material . . . . In addition, a second target which can diffuse through the
nanostructured liquid or liquid crystalline material is added which binds to
another epitope of the ligand.” (Id. at 8: 29 to 9: 5.)
Claims 13, 14, 16-23, and 121-132 are pending and on appeal. The
claims subject to each rejection have not been argued separately and
therefore stand or fall together. 37 C.F.R. § 41.37(c)(1)(vii). Claims 13, 18,
20, and 22 are representative and read as follows:
13. A chemical separating or segregating device, comprising:
a porous manostructured liquid or liquid crystalline particle or
material selected from the group consisting of reversed bicontinuous
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cubic phase, reversed hexagonal phase, L3 phase, normal
bicontin[u]ous cubic phase, and normal hexagonal phase, or a
dehydrated variant thereof; and
a target which binds at least one chemical with specificity
located in said porous nanostructured liquid or liquid crystalline
particle or material, said target being accessible by said at least one
chemical by diffusing in said porous nanostructured liquid or liquid
crystalline particle or material; and
a displaceable entity bound to said target.

18. The chemical separating or segregating device of claim 13
wherein said displaceable entity is lethal to surrounding tissues or
cells.

20. A chemical separating or segregating device, comprising:
a porous nanostructured liquid or liquid crystalline particle or
material selected from the group consisting of reversed bicontinuous
cubic phase, reversed hexagonal phase, L3 phase, normal
bicontin[u]ous cubic phase, and normal hexagonal phase, or a
dehydrated variant thereof; and
a target which binds at least one chemical with specificity
located in said porous nanostructured liquid or liquid crystalline
particle or material, said target being accessible by said at least one
chemical by diffusing in said porous nanostructured liquid or liquid
crystalline particle or material, and
a non-displaceable entity bound to the target.

22. A chemical separating or segregating device, comprising:
a porous nanostructured liquid or liquid crystalline particle or
material selected from the group consisting of reversed bicontinuous
cubic phase, reversed hexagonal phase, L3 phase, normal
bicontin[u]ous cubic phase, and normal hexagonal phase, or a
dehydrated variant thereof; and
a target which binds at least one chemical with specificity
located in said porous nanostructured liquid or liquid crystalline
particle or material, said target being accessible by said at least one
chemical by diffusing in said porous nanostructured liquid or liquid
crystalline particle or material, and
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avidin in said porous nanostructured liquid or liquid crystalline
particle or material.

The claims stand rejected under 35 U.S.C. § 103(a) as follows:
• Claims 13, 14, 16, 17, 19, 121, 125, and 129 in view of Anderson2
and Ullman3 (Ans. 4);
• Claim 18 in view of Anderson, Ullman, and Marley4 (Ans. 8);
• Claims 20, 21, 122, 126, and 130 in view of Anderson and Kaspar5
(Ans. 9); and
• Claims 22, 23, 123, 124, 127, 128, 131, and 132 in view of
Anderson, Kaspar, and Gerber6 (Ans. 11).
ANDERSON AND ULLMAN
Issue
The Examiner has rejected claims 13, 14, 16, 17, 19, 121, 125, and
129 in view of Anderson and Ullman. The Examiner finds that Anderson
discloses a device comprising a target and a porous nanostructured liquid or
liquid crystalline particle or material, as recited in claim 13, but without a
“displaceable entity” bound to the target (Ans. 5). The Examiner finds that
Ullman teaches receptor-ligand competitive binding assays (id. at 6), and
concludes that it would have been obvious to use Anderson’s device in the
competitive binding assay taught by Ullman because such assays are widely

2 Anderson, U.S. Patent 6,482,517 B1, issued Nov. 19, 2002.
3 Ullman et al., U.S. Patent 6,103,537, issued Aug. 15, 2000.
4 Marley et al., U.S. Patent 5,856,112, issued Jan. 5, 1999.
5 Kaspar, U.S. Patent 4,966,839, issued Oct. 30, 1990.
6 Gerber et al., U.S. Patent 4,503,143, issued March 5, 1985.
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used in the pharmaceutical industry and provide a signal that can be related
to the affinity of a drug or toxin for the receptor (id. at 6-7).
Appellant contends that the claimed product would not have been
obvious based on Anderson and Ullman because “Anderson and Ullman
teach completely different methodologies. . . . Ullman has nothing to do with
particles or materials similar to those described in [Anderson]” (Appeal Br.
25.) Appellant also argues that the references would not have provided the
skilled worker with a reasonable expectation of success in using Anderson’s
material in a competitive binding assay (id. at 26).
The issue with respect to this rejection is: Did the Examiner err in
concluding that the disclosures of Anderson and Ullman would have
suggested using Anderson’s material in a competitive binding assay, such as
that taught by Ullman, with a reasonable expectation of success?
Findings of Fact
1. Anderson discloses coated particles comprising a matrix made of a
nanostructured liquid phase or a nanostructured liquid crystalline phase
(Anderson, col. 3, ll. 26-35).
2. Anderson discloses that nanostructured liquid or liquid crystalline
phase has “a porespace with preselectable pore size in the nanometer range,
facilitating further control of the release kinetics . . . particularly in the
release of proteins and other biomacromolecules” (id. at col. 6, ll. 1-5). In
other words, the nanostructured liquid or liquid crystalline material is
porous.
3. Anderson discloses that “[i]n applications of these microparticles
in drug-delivery or with embedded proteins or polypeptides (in particular
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receptor proteins)” it is desirable to have a matrix that closely simulates the
properties of a natural biomembrane (id. at col. 32, ll. 19-24).
4. Anderson discloses that the particles have applications in
“Research, including Microcapsule-packed columns in extractions and
separations; Biochemical assays, particularly in pharmaceutical research and
screening” (id. at col. 35, ll. 54-56).
5. Anderson describes a working example in which “receptor proteins
are disposed within the matrix of a nanostructured reverse bicontinuous
cubic phase material in the internal core of magnesium carbonate-coated
particles” (id. at col. 55, ll. 12-15).
6. Anderson states that the example “presage[s] the use of coated
particles . . . for, e.g., affinity chromatography” (id. at col. 55, ll. 19-20).
7. The receptor in Anderson’s example was the torpedo nicotinic
acetylcholine receptor (id. at col. 55, l. 28).
8. Anderson discloses that the magnesium carbonate coating protects
the receptor protein during shipping and storage, and is “easily removed by
washing just before use” (id. at col. 55, ll. 16-18).
9. Anderson discloses that “[u]sing 125I-labeled bungarotoxin as the
ligand, an assay of receptor binding was performed using the nanostructured
reverse bicontinuous cubic phase material microparticle-immobilized
acetylcholine receptor system just described” (id. at col. 56, ll. 50-53).
10. Anderson discloses that the “results showed that the . . .
acetylcholine receptor system exhibited binding of the bungarotoxin at
approximately 70% of the level measured with the standard receptor
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preparation, demonstrating the retention of protein binding properties” (id. at
col. 56, ll. 55-61).
11. Anderson discloses that the results of the example “actually show
the application of the particles in biochemical assays, and show a large
improvement in stability over the commonly used liposomes. . . . Such
assays are important in clinical diagnoses, as well as in pharmaceutical drug
screening.” (Id. at col. 56, l. 65 to col. 57, l. 3.)
12. Ullman discloses that enzyme immunoassays (EIAs) can be
characterized as competitive (when antigen linked to an enzyme and
unlabeled antigen compete for a limited number of antibody binding sites) or
noncompetitive (when the antigen or antibody to be measured is allowed to
react alone with an excess of immune reactant) (Ullman, col. 1, ll. 55-63).
13. Ullman discloses that using “cell surface receptors for the
discovery and characterization of pharmacologically active compounds has
become an important tool in the pharmaceutical industry” (id. at col. 27, ll.
53-56).
14. Ullman discloses that screening “[a]ssay protocols include those
wherein a ligand labeled with a fluorophore, enzyme or biotin binds
competitively with unlabeled ligand for the active sites of the receptor
yielding an analytical signal that can be related to the affinity of the drug,
toxin, or other test compound of interest relative to the standard tracer” (id.
at col. 27, l. 64 to col. 28, l. 2).
15. Appellant does not dispute that competitive binding assays are
well known (Appeal Br. 24).
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Principles of Law
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “[W]hen the
question is whether a patent claiming the combination of elements of prior
art is obvious,” the answer depends on “whether the improvement is more
than the predictable use of prior art elements according to their established
functions.” Id. at 417.
The obviousness analysis “can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” Id. at
418. “A person of ordinary skill is also a person of ordinary creativity, not
an automaton.” Id. at 421.
Analysis
Anderson discloses microparticles having a nanostructured liquid or
liquid crystalline phase matrix. Anderson exemplifies a nicotinic
acetylcholine receptor (“target”) located in a nanostructured reverse
bicontinuous cubic phase material. Anderson discloses that the
microparticle-immobilized receptor bound its ligand, showing that the
nanostructured material was porous and that the target was accessible to
ligand diffusing through the material.
Anderson does not expressly teach that a displaceable entity was
bound to the receptor. However, Ullman teaches that competitive assays are
a known class of enzyme immunoassays in which unlabeled ligand and
ligand linked to an enzyme compete for a limited number of binding sites.
Ullman also teaches that competitive assays using receptors can be used to
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measure the binding affinity of drugs or toxins, allowing the discovery and
characterization of pharmacologically active compounds.
It would have been obvious to a person of ordinary skill in the art to
use Anderson’s product in a competitive binding assay like those taught by
Ullman, because Anderson teaches that its microparticles are useful in
biochemical assays, particularly in pharmaceutical research and screening,
and Ullman teaches that competitive assays are used in pharmaceutical
research to discover and characterize pharmacologically active compounds.
The labeled and unlabeled ligands that compete for receptor binding sites are
“displaceable entities” because they are bound and released by the receptor;
i.e., they can be displaced.
Appellant argues that the claimed “device keeps the marker separate
from the displaceable entity and allows for accurate detection without the
complex washing requirements which are required by current solid-phase
assays. Neither Anderson nor Ullman contemplate any procedures whereby
washing can be avoided in a competitive binding assay.” (Appeal Br. 24-
25.)
This argument is not persuasive because claim 13 is directed to a
product, not a method that requires or excludes a washing step.
Appellant also argues that Ullman teaches a microfluidic capillary
assay device, which is unrelated to the materials taught by Anderson and
does not operate by diffusion of chemicals into or out of the device (Appeal
Br. 25-26).
This argument is also unpersuasive, because the Examiner’s rejection
is not based on combining the products of Anderson and Ullman, but on
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“us[ing] the porous nanostructured liquid or liquid crystalline particle
(matrix) comprising a membrane protein as taught by Anderson in a
receptor-ligand competitive binding assay[]” (Ans. 6). For the reasons
discussed above, the combination relied on by the Examiner would have
been obvious to the ordinarily skilled worker.
Finally, Appellant argues that Anderson does not support a reasonable
expectation of successfully making the product defined by claim 13 (Appeal
Br. 26).
This argument is also unpersuasive, because Anderson provides a
working example showing that a receptor located inside a nanostructured
liquid or liquid crystalline particle binds a ligand, showing that displaceable
entities (labeled or unlabeled ligand molecules) can diffuse through the
matrix material and bind to the immobilized receptor. Anderson therefore
provides ample basis for a reasonable expectation of success.
Conclusion of Law
The Examiner did not err in concluding that the disclosures of
Anderson and Ullman would have suggested using Anderson’s material in a
competitive binding assay, such as that taught by Ullman, with a reasonable
expectation of success.
ANDERSON, ULLMAN, AND MARLEY
Issue
The Examiner has rejected claim 18 under 35 U.S.C. § 103(a) based
on Anderson, Ullman, and Marley (Ans. 8). The Examiner finds that
Ullman “teaches a use of labeled displaceable entity, which includes [a]
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variety of drugs such as anti-neoplastics (methotrexate . . .)” and that Marley
provides evidence that methotrexate is lethal to surrounding tissues or cells
(Ans. 8).
Appellant contends that “if one of ordinary skill in the art were to
view all three references, he or she might be of the opinion that methotrexate
might be put in a coated particle like that described in Anderson,” but that
the references would not make obvious “having the methotrexate bound to a
target within the Anderson particle” to be released at a site of interest
(Appeal Br. 27).
The issue with respect to this rejection is: Did the Examiner err in
concluding that the references would have suggested using Anderson’s
particles in a competitive assay to detect methotrexate?
Additional Findings of Fact
16. Ullman discloses that “[i]n its broadest sense the present concept
involves associating a specific binding pair member with a particle such that
the associated sbp member-particle is much larger in relation to the sbp
member. In this way inhomogeneity of an sbp member in capillary
electroseparation procedures can be masked.” (Ullman, col. 5, ll. 21-26.)
17. Ullman discloses that “the analyte can be comprised of a member
of a specific binding pair (sbp) and may be a ligand which is monovalent
(monoepitopic) or polyvalent (polyepitopic)” (id. at col. 6, ll. 6-8).
18. Ullman teaches that the “monoepitopic ligand analytes . . .
include drugs” (id. at col. 6, ll. 16-18) such as methotrexate (id. at col. 7, ll.
3-4).
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19. Marley teaches that “[c]ytotoxic chemotherapeutic agents for
prostate cancer” include methotrexate (Marley, col. 14, ll. 34-36).
Principles of Law
“In determining whether the subject matter of a patent claim is
obvious, neither the particular motivation nor the avowed purpose of the
patentee controls. . . . [A]ny need or problem known in the field of endeavor
at the time of invention and addressed by the patent can provide a reason for
combining the elements in the manner claimed.” KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 419-20 (2007).
Analysis
For the reasons discussed previously, we conclude that a skilled
worker would have considered it obvious to use Anderson’s microparticles
in a competitive assay to detect a compound of interest. Ullman suggests
using binding assays to detect any of a variety of drugs, including
methotrexate. We agree with the Examiner that these teachings would have
made it obvious to use Anderson’s microparticles in competitive assays to
detect any of the drugs disclosed by Ullman, including methotrexate.
Marley provides evidence that methotrexate is cytotoxic, or “lethal to
surrounding tissues or cells,” as recited in claim 18.
The product made obvious by the references therefore includes a
displaceable entity that is lethal to surrounding tissue or cells. That the prior
art suggests making the product in order to detect methotrexate, rather than
to release it at a site of interest is of no importance; the prior art need not
suggest making a claimed invention for the same reason the inventor did.
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Conclusion of Law
The Examiner did not err in concluding that the references would
have suggested using Anderson’s particles in a competitive assay to detect
methotrexate.
ANDERSON AND KASPAR
Issue
The Examiner has rejected claims 20, 21, 122, 126, and 130 under 35
U.S.C. § 103(a) based on Anderson and Kaspar (Ans. 9). The Examiner
finds that Anderson teaches the product of claim 20, except that it fails to
teach “a non-displaceable entity bound to the target” (Ans. 9). The
Examiner finds the “Kaspar et al. teach a well known type of biochemical
assay such as a sandwich-type immunoassay,” and concludes that it would
have been obvious to use Anderson’s product in a sandwich-type assay like
that taught by Kaspar, “in which a binding analyte is a non-displaceable
entity” (id. at 10).
Appellant contends that it would not have been obvious to use
Anderson’s particles in a sandwich-type assay because Anderson does not
suggest a target inside its material with a non-displaceable entity bound to
the target and accessible to a chemical diffusing into the material (Appeal
Br. 28).
The issue with respect to this rejection is: Did the Examiner err in
concluding that the disclosures of Anderson and Kaspar would have
suggested using Anderson’s material in a sandwich-type binding assay, such
as that taught by Kaspar?
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Additional Findings of Fact
20. Kaspar discloses that “[t]wo-sided immunoassays (sandwich
tests) show marked advantages with regard to exactitude, sensitivity and
rapidity as compared to competitive immunoassays” (Kaspar, col. 1, ll. 11-
14).
21. Kaspar discloses that in a one-step sandwich assay, “the analyte is
brought to reaction with two receptors specific for it in the same solution and
thereby or subsequently is fixed to an insoluble carrier material” (id. at col.
1, ll. 34-37).
22. Kaspar discloses that in a sequential sandwich assay, “after
reaction of the analyte with a first specific receptor and fixing of the
complex formed on to a solid phase, non-bound analyte is removed by
washing the solid phase before reacting the complex with a second specific
labelled receptor” (id. at col. 1, ll. 38-42).
23. In either case, “after separation of the sample and reagent liquid,
the solid phase-fixed sandwich complexes are determined via the amount of
bound labelled receptors (radioactive, enzymatic, fluorometric or similarly
labelled)” (id. at col. 2, ll. 54-58).
24. Appellant does not dispute that sandwich-type assays are known
in the art (Appeal Br. 28).
Analysis
The Specification does not define the term “non-displaceable entity,”
but distinguishes between competitive assays, in which “a displaceable
chemical . . . will be displaced by the chemical of interest” (Spec. 8: 19-20)
and sandwich assays, in which an analyte is bound by a target that is
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immobilized within a particle and by a second target that diffuses into the
particle and binds a different epitope (id. at 8: 29 to 9: 5). Thus, as we
interpret it, a “non-displaceable entity” is one that is bound by a diffusible
target in a sandwich-type assay without being displaced from the target in
the nanostructured material.
As discussed above, Anderson discloses a porous nanostructured
liquid or liquid crystalline material with a target (receptor) located in it.
Anderson does not expressly teach that a non-displaceable entity was bound
to the receptor. However, Kaspar teaches that sandwich-type assays are a
known type of immunoassay in which an analyte is bound by an
immobilized receptor and by a second (labeled) receptor to form a receptor-
ligand-receptor sandwich. Kaspar also teaches that sandwich-type assays
are more exact, sensitive, and rapid than competitive immunoassays.
It would have been obvious to a person of ordinary skill in the art to
use Anderson’s product in a sandwich-type assay like those taught by
Kaspar, because Anderson teaches that its microparticles are useful in
biochemical assays, particularly in pharmaceutical research and screening,
and Kaspar teaches that sandwich-type assays are a known type of assay for
measuring receptor-ligand binding and are more exact, sensitive, and rapid
than competitive immunoassays. The analyte bound by the immobilized and
labelled targets in a sandwich-type assay is a “non-displaceable entity”
because it is not displaced from the immobilized target when bound by the
labeled target.
Appellant argues that “no combination of Anderson and Kaspar would
make obvious the new chemical separating and segregating devices, where
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complex washing requirements are not required” (Appeal Br. 29). As with
claim 13, however, claim 20 is directed to a product, not a method that
requires or excludes a washing step.
Appellant also argues that Anderson “clearly does not show or suggest
a target inside the crystalline material which has a non-displaceable entity
bound to the target” (Appeal Br. 28). It is true that Anderson does not
expressly disclose a non-displaceable entity but, for the reasons discussed
above, we conclude that this limitation would have been obvious based on
Anderson and Kaspar.
Finally, Appellant argues that Anderson “clearly does not show or
suggest a target inside the crystalline material . . . where a chemical of
interest can diffuse into the crystalline structure and be bound by a
combination of the target and non-displaceable entity” (Appeal Br. 28).
This argument is also unpersuasive, because Anderson discloses that a
receptor immobilized in its material bound its ligand, providing evidence
that a chemical of interest (e.g., a labelled target) could diffuse through
Anderson’s material and bind to a non-displaceable entity bound to an
immobilized receptor.
Conclusion of Law
The Examiner did not err in concluding that the disclosures of
Anderson and Kaspar would have suggested using Anderson’s material in a
sandwich-type binding assay, such as that taught by Kaspar.
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ANDERSON, KASPAR, AND GERBER
Issue
The Examiner has rejected claims 22, 23, 123, 124, 127, 128, 131, and
132 under 35 U.S.C. § 103(a) based on Anderson, Kaspar, and Gerber (Ans.
11). The Examiner finds that “Gerber et al. teaches a method of using
avidin-biotin complex in a sandwich assay” (Answer 12), and that doing so
results in greater sensitivity (id. at 13). The Examiner concludes that it
would have been obvious to use Gerber’s avidin-biotin complex in the
sandwich assay made obvious by Anderson and Kaspar, in order to produce
greater sensitivity (id.).
Appellant contends that “Gerber does not show avidin or biotin being
positioned in a porous nanostructured liquid or liquid crystalline particle or
material” (Appeal Br. 29).
The issue with respect to this rejection is: Did the Examiner err in
concluding that the disclosure of Gerber would have suggested using avidin-
biotin complexes in the sandwich-type binding assay made obvious by
Anderson and Kaspar?
Additional Findings of Fact
25. Gerber discloses that the “use of avidin-biotin complexes (ABC)
linked to enzymes such as horseradish peroxidase are disclosed in the
literature as increasing the sensitivity of enzyme immunoassays” (Gerber,
col. 5, ll. 22-25).
26. Gerber teaches that the ABC technique “employs a primary
antibody to which is bound test antigen. A biotinylated second antibody
then reacts with the bound antigen. An avidin-biotin peroxidase complex
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(ABC) is prepared and reacts with the biotinylated secondary antibody.” (Id.
at col. 5, ll. 25-29.)
27. Gerber discloses that the “ABC technique . . . results in a double
antibody sandwich with antigen linked between the antibodies and wherein
the second antibody is biotinylated; the second antibody in turn is linked to
the avidin-biotin peroxidase” (id. at col. 5, ll. 43-48).
Analysis
For the reasons discussed above, it would have been obvious to a
person of ordinary skill in the art to use Anderson’s nanostructured particles
in a sandwich-type assay like that described by Kaspar. Gerber teaches that
using an avidin-biotin peroxidase complex increases the sensitivity of
sandwich immunoassays. Therefore, it would have been obvious to use
Gerber’s avidin-biotin peroxidase complex in the sandwich assay made
obvious by Anderson and Kaspar, in order to gain the advantage of greater
sensitivity.
Appellant’s arguments with respect to this rejection are adequately
addressed above.
Conclusion of Law
The Examiner did not err in concluding that the disclosure of Gerber
would have suggested using avidin-biotin complexes in the sandwich-type
binding assay made obvious by Anderson and Kaspar.
SUMMARY
We affirm all of the rejections on appeal.
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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED
lp

WHITHAM, CURTIS & CHRISTOFFERSON & COOK, P.C.
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