Appeal 2007-1819
Application 09/886,055
LINCK, Administrative Patent Judge, dissenting.
I would affirm the Examiner and, thus, respectfully dissent from the
majority’s reversal.
Appellants admit “Krautwurst discloses a method having all the steps
as set forth in claims 23-26 with the exception of failing to teach or suggest
any sensory assay that uses . . . an olfactory receptor as set forth in SEQ ID
NO:55.” (Br. 7.8) According to Appellants, Burford does not cure this
deficiency. While Burford “teaches a number of different G protein coupled
receptor sequences including a sequence that appears to correspond to SEQ
ID NO:55 . . . the teachings of Burford . . . fail to teach or identify SEQ ID
NO:55 as encoding a human olfactory receptor.” (Id.)
The Examiner responds:
“Burford discloses SEQ ID NO:27 (Appellants’ SEQ ID NO:55 . . .)
is an olfactory receptor at page 42 Table 3” (Answer 7-8) or at least one of a
limited number of “structural homologs, which are derived from . . .
sequences suggested by the prior art as olfactory receptors” (id. at 9). Thus,
according to the Examiner one of skill in the art would be motivated to
combine the method of functional analysis, as taught by Krautwurst with the
specific olfactory receptor sequences disclosed by Burford … because
Krautwurst discloses the expectation that his method of analysis will be used
to study olfactory receptors elucidated in other laboratories. (Id. at 8.)
Further, according to the Examiner, “the skilled artisan practicing the
method of Krautwurst and looking for olfactory proteins with which to
practice, would review Burford and only be selecting from 24 olfactory
8 “Br.” refers to Appellants’ Substitute Appeal Brief Under § 41.37(c) (filed
October 27, 2006.)
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