Ex parte KAMBOJ et al.; Ex parte FOLDES et al. - Page 23


                  Appeal No.  1997-3221                                                                                        
                  Application No.  08/249,241                                                                                  
                  rat GluR6 receptor subunit was found by the examiner to be 99.5% identical to the                            
                  amino acid sequence of the receptor subunit of the appealed claims.  The examiner                            
                  references (Answer, bridging paragraph, pages 4-5) Sun and Puckett for a                                     
                  description of the isolation of a DNA encoding human homolog of the rat GluR1.                               
                          The examiner further references (Answer, page 6) Puckett for the teaching                            
                  that “[t]he extreme conservation between the human and rat kainate receptor                                  
                  subunits suggest that a similar gene family will encode human kainate receptors.”                            
                          While the claims on appeal are drawn to “[a] method of detecting interaction”                        
                  using a human EAA4 (having a specific SEQ ID NO.) receptor-producing cell.  It is                            
                  obviously essential to the examiner’s rejection that a cDNA encoding the EAA4a or                            
                  4b receptor must first be successfully isolated.  Once isolated the cDNA is used to                          
                  engineer a cell to express the receptor, and then the claimed method can be                                  
                  performed.                                                                                                   
                          With regard to the examiner’s approach, we note that the instant application                         
                  is a divisional application of Application No. 07/903,456, now United States Patent                          
                  No. 5,574,144 (‘144).  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 at least claims 1, 3, 15, 16 and 18 of ‘144 are patentable.                                             











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