Appeal No. 1996-1204
Application No. 08/090,369
BACKGROUND
The applicants’ invention, as described at pages 1-4 of the specification, is
directed to a cloned human neurokinin-3 receptor (NK-3) peptide and a recombinant DNA
molecule which encodes the receptor. The human NK-3 is described as useful in an assay
for the presence of neurokinin B, which binds preferentially to NK-3, as well as in
conjunction with diagnosis to determine the body fluid concentration of neurokinin-B
related substances in patients. Neurokinin B is a naturally occurring peptide belonging to
the neurokinin family of peptides, is known in the art, and has been implicated in the
pathophysiology of numerous diseases.
DISCUSSION
The rejections under 35 U.S.C. § 103
Obviousness is a legal conclusion based on the underlying facts. Graham v. John
Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966); Continental Can Co. USA, Inc.
v. Monsanto Co., 948 F.2d 1264, 1270, 20 USPQ2d 1746, 1750 (Fed. Cir. 1991); Panduit
Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1566-68, 1 USPQ2d 1593, 1595-97 (Fed.
Cir. 1987). Here, the examiner has cited Shigemoto as describing (Answer, page 4-5):
an isolated cDNA encoding the rat homologue of the encoded human NK-3
(neuromedin K) receptor (Figure 1, page 625) of the instant invention.
Further disclosed by this reference was a plasmid containing that DNA and
a COS cell transformed with that plasmid (first full paragraph in the left
column on page 624). Figure 2 of this reference disclosed that the rat NK-3
(neuromedin K), NK-2 (substance K) and NK-1 (substance P) receptors, all
of which are G protein-coupled receptors for tachykinins, have substantial
sequence similarity which is greatest in the transmembrane domains.
The examiner acknowledges that (Answer, page 5):
3
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