Appeal No. 2000-1780 Application No. 08/403,663 Claim 31: The examiner states (Answer, page 8) “[b]ecause GluR2 was known to be structurally and functionally analogous to the GABA receptor subunit of Cutting et al., an artisan would have found the incorporation of a cDNA encoding that receptor subunit into an expression system like the one described by Cutting et al., and the subsequent preparation of membrane homogenates from the resulting cells to determine the ligand binding characteristics of a receptor composed of human GluR2 in the absence of other human glutamate receptors to have been prima facie obvious in view of this combination of references at the time the instant invention was made.” This rejection based on the combination of Heinemann, Puckett and Sun further in view of Cutting hinges on the fact that it would have been obvious to obtain GluR2B, comprising the amino acid sequence of amino acids 1-863 of SEQ ID NO:2, as recited in the claims. In our opinion, supra, the examiner failed to meet his burden of establishing a prima facie of obviousness, based on the combination of Heinemann, Puckett and Sun. Cutting does not make up for the deficiencies noted above. Having determined that the examiner has not established a prima facie case of obviousness, we find it unnecessary to discuss the Zimmerman Declaration executed July 21, 1997, and the Declarations filed under 37 CFR § 1.131 of Kamboj (executed August 7, 1997), Nutt (executed June 26, 1997) and Elliott (executed June 26, 1997) relied on by appellants to rebut any such prima facie case. 68Page: Previous 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 NextLast modified: November 3, 2007