Appeal 2007-1819
Application 09/886,055
underlying factual basis, that Burford’s protein having SEQ ID NO: 55 is an
olfactory receptor and maintain a rejection of the claimed method based on
this unsupported conclusion (id.). According to Appellants,
while the Examiner is correct in her assertion that olfactory
receptors constitute a large subfamily of GPCRs, this does not
mean that it is reasonable to assume based on this fact that a
GPCR of uncharacterized function will encode an olfactory
receptor. Nor is it reasonable to conclude that it would be
obvious to utilize such a sequence in an olfactory assay as
claimed herein.
(Br. 8) We agree6 and find the issue before this panel to be two-fold: (1)
does Burford teach or reasonably suggest an olfactory receptor protein
having SEQ ID NO: 55; and (2) if so, would it have been prima facie
obvious to a person of ordinary skill in the art at the time of Appellants’
claimed invention to modify the method of Krautwurst to include this
protein.
According to the Examiner, Burford teaches that SEQ ID NO: 27,
which corresponds to Appellants SEQ ID NO: 55, is an olfactory receptor
6 Therefore, we disagree with the dissent’s factually unsupported conjecture
that olfactory receptors are the largest subfamily of G protein coupled
receptors (GPCRs) and therefore a protein that shares some degree of
homology with an olfactory receptor would be expected to be an olfactory
receptor (infra 15). As Appellants explain, those of ordinary skill in this art
would recognize that “GPCRs constitute a huge group which includes
thousands of different genes which are involved in a myriad of different
cellular functions and signaling events with only one of these functions
being olfaction” (Br. 8). See Burford for a listing of the various cellular
functions and signaling events in which GPCRs are involved (Burford 1: ¶
0004). See also Burford’s disclosure that the largest subfamily of GPCRs is
the rhodopsin-like subfamily “which transmit diverse extracellular signals
including hormones, neurotransmitters, and light” (Burford 1: ¶ 0006).
Included in this “subfamily” are the olfactory receptors (Burford 2: ¶ 0008).
7
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