Ex parte MAUPIN

Board of Patent Appeals and Interferences

Mar 13, 1998

07648586 (B.P.A.I. Mar. 13, 1998)

Application for patent filed January 31, 1991.1
-1-
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 34
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte PAUL H. MAUPIN
________________
Appeal No. 95-0285
Application No. 07/648,5861
________________
HEARD: March 2, 1998
________________
Before WINTERS, SOFOCLEOUS and GRON, Administrative Patent
Judges.
WINTERS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal was taken from the examiner's decision rejecting
claims 1 through 14, 16 and 18 through 23, which are all of the
claims remaining in the application. At the oral hearing on
March 2, 1998, counsel expressed appellant's intention to
withdraw claim 11 from the appeal, and this has been confirmed in
Appeal No. 95-0285
Application No. 07/648,586
-2-
Paper No. 33, filed March 3, 1998. Accordingly, the appeal with
respect to claim 11 is dismissed, leaving claims 1 through 10, 12
through 14, 16 and 18 through 23 for our consideration.
Claims 1, 10, 12 and 19 are representative:
1. An assay kit for identifying periodontal disease in a
patient, said disease correlated to elevated levels of aspartate
aminotransferase (AST) in a crevicular fluid sample from the
patient, which kit comprises an enclosure containing:
an aliquot of a buffered aqueous solution of cysteine
sulfinic acid (CSA) provided in a container for said aliquot;
a plurality of solid indicator supports each comprising a
triarylmethine dye affixed to a solid matrix, said dye reactive
with sulfite ion and nonreactive with both CSA and AST; and
an assay plate provided with a plurality of wells, each well
defining a volume sufficient to hold one of said solid indicator
supports and a portion of the CSA solution adequate to perform at
least one assay. [Emphasis added.]
10. An assay kit for identifying a disease correlated to
elevated levels of aspartate aminotransferase (AST) in a bodily
fluid sample from a patient, which kit comprises an enclosure
containing:
an aliquot of a buffered aqueous solution of cysteine
sulfinic acid (CSA) provided in a container for said aliquot; and
an assay plate defining a plurality of assay wells, said
assay wells containing a triarylmethine dye that is reactive with
sulfite ion but nonreactive with CSA and AST, each of said assay
wells defining a volume sufficient to hold the fluid sample and a
portion of the CSA solution adequate to perform at least one
assay. [Emphasis added.]
12. A method for determining the amount of aspartate
aminotransferase (AST) in a body fluid sample from a mammal,
which method comprises:
Appeal No. 95-0285
Application No. 07/648,586
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contacting, under AST reacton [sic] conditions, a body fluid
sample from the mammal with cysteine sulfinic acid (CSA) in the
presence of a triarylmethine dye nonreactive with both AST and
CSA for a period of time sufficient for at least some of said CSA
to be converted to sulfite ions that react with said triaryl-
methine dye to form a signal species; and
determining the amount of signal species formed, and thereby
the amount of AST in said sample. [Emphasis added.]
19. A method for detecting an AST-related disease in a patient
comprising contacting a fluid sample from the patient with
cysteine sulfinic acid (CSA) in the presence of a triarylmethine
dye that is nonreactive with both CSA and the fluid sample, and
detecting reaction of said triarylmethine dye. [Emphasis added.]
The references relied on by the examiner are:
Babler et al. (Babler) 4,801,535 Jan. 31, 1989
Baram 4,981,787 Jan. 1, 1991
Staple et al. (Staple) 5,039,619 Aug. 13, 1991
(filed Sept. 20, 1989)
The issue presented for review is whether the examiner erred
in rejecting all of the appealed claims under 35 U.S.C. § 103 as
unpatentable over the combined disclosures of Baram, Staple and
Babler.
On consideration of the record, we reverse the examiner's
prior art rejection. The claimed assay kit requires, as an
essential component, cysteine sulfinic acid (CSA) and the claimed
method requires CSA as an essential reagent. Manifestly, the
prior art relied on by the examiner is insufficient to support a
conclusion of obviousness of claims reciting CSA. Neither Baram
nor Staple nor Babler discloses or suggests the use of CSA.
Appeal No. 95-0285
Application No. 07/648,586
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Therefore, the cited prior art, regardless how viewed, would not
have led a person having ordinary skill in the art to the claimed
subject matter.
The appeal with respect to claim 11 is dismissed.
The examiner's decision rejecting claims 1 through 10, 12
through 14, 16 and 18 through 23 is reversed.
REVERSED
SHERMAN D. WINTERS )
Administrative Patent Judge )
)
)
)
MICHAEL SOFOCLEOUS ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
TEDDY S. GRON )
Administrative Patent Judge )
Appeal No. 95-0285
Application No. 07/648,586
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Richard J. Warburg, Esq.
Lyon & Lyon
611 West Sixth St.
Los Angeles, CA 90017