Appeal No. 1997-3221
Application No. 08/249,241
changed to something other [than] serine, or something other than serine in
Heinemann/Bettler [‘90] is changed to a serine." Appellants conclude (Brief, page
20) that due to serine’s involvement in phosphorylation and glycosylation, “a skilled
artisan would not be inclined to make serine substitutions, based on the potential
effect of phosphorylation and/or glycosylation on receptor activity.”
In response the examiner states (Answer, page 9) that:
The presence of non-conservative substitutions in human vs.
rat GluR5/EAA3 does not imply unobviousness for one of ordinary
skill in the art of molecular biology. … the ordinarily skilled molecular
biologist would undertake to use probes or primers based upon the
sequence in hand to identify and isolate the desired mammalian
homolog, as evidenced, for example, by Puckett.
The examiner concludes (Answer, page 10) that an artisan of ordinary skill
“would thus have expected to retrieve a human GluR5-2 homolog having several
conservative and nonconservative substitutions relative to the rat sequence.
However, initially, we note that while the claim recites a Markush grouping of
four distinct EAA3 receptors, we find nothing in the examiner’s rejection or
arguments which reasonably teaches or suggests any one of these specific
sequences, identified by SEQ ID Nos. In fact, the examiner expressly states
(Answer, page 12) that “[t]here was no absolute assurance at the time of the
invention that a human homolog of GluR[5]-2 could be retrieved from a human
library.” We further note the examiner indicated (Final Rejection, Paper No. 15,
mailed March 27, 1996) claims 41, 42, 46 and 47 as allowable. These claims are
limited to methods using the EAA3c and EAA3d receptors.
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