Appeal No. 95-2319
Application 07/812,880
In describing Evans, the examiner states (Answer, page 6):
Evans et al teach a method for identifying functional ligands for
receptor proteins by transfecting host cells with a chimeric gene which
includes operative portions of a DNA-binding domain regions from a ligand-
responsive receptor protein and with a reporter gene functionally linked to an
operative hormone response element.
The examiner acknowledges that Evans differs from the claimed invention stating
(Answer, page 6):
This reference does not teach infection with recombinant virus in
order to introduce the genes of interest into the host cell.
The examiner relies on Stryer as teaching that infection with recombinant virus is one of
several methods of gene transfer (Answer, page 6). The examiner concludes (Answer,
page 6):
It would have been obvious to one of ordinary skill in the art at the time
the invention was made to have used infection to introduce the genes taught
by Evans et al for the assay for functional ligands into the host cells using
infection as taught by Stryer.
It is the initial burden of the patent examiner to establish that claims presented in an
application for patent are unpatentable. In re Oetiker, 977 F.2d 1443, 1446, 24 USPQ2d
1443, 1445 (Fed. Cir. 1992). We have carefully considered the evidence and discussion
in support of the rejection presented by the examiner. However, a fair evaluation of the
references, applicant's specification and consideration of the claimed subject matter as a
whole, dictates a conclusion that the construction of the claimed method from the prior art
teachings is not suggested by the record before us.
Evans discloses, at columns 11-12, a bioassay for identifying functional ligands for
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