Appeal 2007-1819
Application 09/886,055
DISCUSSION
Appellants do not dispute that Krautwurst discloses every limitation
of claim 23, except the clause “wherein at least one of the n olfactory
receptors has the amino acid sequence contained in SEQ ID NO: 55.” (FF
2.) Further, contrary to the majority’s finding, Appellants do not dispute the
Examiner’s finding that “Burford discloses SEQ ID NO:27 (Appellants’
SEQ ID NO :55 . . .) is an olfactory receptor” (Answer 7-8 (citing page 42
Table 3) (emphasis added)). (FF 10.)
The record does not support the majority’s finding that “Appellants
assert that neither Krautwurst nor Burford teach[es] that a protein having
SEQ ID NO:55 is an olfactory receptor (Br. 6).” (Supra p. 6 (emphasis
majority’s).) Rather Appellants merely argue “the rejection is improper
since it relies upon the identification of SEQ ID NO:55 as encoding a human
olfactory receptor” (Br. 6). This argument does not refer to Burford’s
teachings at all but rather to Appellants’ owning teachings.
Tellingly, Appellants are totally silent as to the data in Burford’s
Table 3 and the Examiner’s reliance on that data. In Table 3, Burford
expressly identifies SEQ ID NO:27 (admitted to be the same as Appellants’
SEQ ID NO:55) as a polypeptide with homology to a known olfactory
receptor and teaches it has olfactory receptor signature sequences. (See FFs
4-5.)
In addition, Appellants do not acknowledge Burford’s disclosure of a
limited number of other such polypeptides suggested to be olfactory
receptors. (FF 4; see Br. passim.)
Given the above, it is difficult to understand how the majority finds
there is no “factual basis to support a finding that a person of ordinary skill
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