Appeal 2007-2517
Application 10/311,196
identity/similarity is shared and whether the identity/similarity occurs over
conserved functional activity domains.
It is also problematic for Appellants’ argument that Table 2 lists two
GenBank homologs for SEQ ID NO: 2: 1) an extracellular calcium-sensing
receptor and 2) the mouse taste receptor T1R3, both which are members of
the metabotropic glutamate receptor family (Spec. 4: 1-6). Appellants’ have
not explained why the disclosure of the taste-specific receptor is an assertion
of utility, while the disclosure of the calcium-sensing receptor is not. We
recognize that the probability scores differ, but both are very high, and there
is no evidence in the record that the score “0” would be recognized as bona
fide, while the score “2.10E-100” would be rejected.
Appellants’ own evidence suggests that the information disclosed in
the Specification is insufficient for persons of skill in the art to have
reasonably concluded that SEQ ID NO: 2 is a taste-specific receptor. Li
(Exhibit 1) and Montmayeur (Exhibit 3) reach their conclusion that a
polypeptide is a taste-specific receptor only after accumulating additional
data tying structural information to the polypeptide’s function. Li expresses
the T1R3 sequence in cells and shows that it is stimulated by a taste ligand,
confirming its identity as a taste receptor (Li, Abstract). Montmayeur
conclude that the T1R3 is a “candidate taste receptor in mouse and humans”
(Montmayeur, p. 495) based on expression data and its correlation with Sac,
a genetic loci that controls the detection of certain tastes in mice
(Montmayeur, p. 495-6). Thus, even after the filing date of the instant
application, persons of ordinary skill in the art required more than just
structural information to reach a conclusion about a polypeptide’s function.
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