Appeal No. 2000-1779 Application No. 08/473,204 predictive of the existence, structure and function of an analogous human glutamate receptor subunit. Further, since Sun et al. disclosed a manner through which a cDNA encoding two-thirds of human GluR2 had been isolated and the chromosomal location of the corresponding gene, an artisan would have been certain that a cDNA encoding the entire human GluR2 subunit could be isolated by employing those methods which were routine in the art at the time of the instant invention. Initially, we note that the instant application shares the same parent with Application No. 08/483,327, now United States Patent No. 6,040,175 (‘175). It appears that the examiner’s rejection of the claims in the present application under 35 U.S.C. § 103 is inconsistent with the determination that claim 3 of ‘175 is patentable. Claim 3 of the ‘175 patent reads as follows: 3. The human GluR2B receptor having the sequence of amino acids 1- 863 of SEQ ID NO:2, in a form essentially free from other proteins of human origin. In addition, Heinemann, Puckett, and Sun relied upon by the examiner in this appeal are cited on the face of the patent as considered prior art. While the examiner may issue a rejection if appropriate under these circumstances, a rejection using the rationale set forth above would appear to require the signature of the Group Director. Compare MPEP ' 2307.02 (7th ed., July 1998). We note the Group Director did not sign the examiner’s action. Generally, appeals on these facts are remanded to provide the examiner an opportunity to consider the issued patent and determine its effect, if any, on the issues raised under 35 U.S.C. § 103. However, after considering the facts in this case we believe the better course of action is to move forward with a decision on the merits of this appeal. 55Page: Previous 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 NextLast modified: November 3, 2007