Appeal No. 1997-3221
Application No. 08/249,241
Claims 1, 3, 15, 16 and 18 of the ‘144 patent read as follows:
1. An isolated polynucleotide that codes for the human EAA4 receptor that
has the amino acid sequence of amino acids 1-877 of SEQ ID NO:2.
3. An isolated polynucleotide which encodes the human EAA4 receptor that
has an amino acid sequence of amino acids 1-877 of SEQ ID NO: 2 with
the exception that the amino acid at position 727 is aspartic acid,
wherein said human EAA4 receptor is the human EAA4b receptor.
15. A cell that has been engineered genetically to produce a kainate-binding
human EAA4 receptor, said cell having incorporated expressibly therein
the polynucleotide as recited in claim 1.
16. The cell as defined in claim 15, which is a mammalian cell.
18. The membrane preparation derived from the cell as defined in claim 15.
In addition, both Puckett and Sun relied upon 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.
The initial burden of establishing reasons for unpatentability rests on the
examiner. In re Oetiker, 977 F.2d 1443, 1446, 24 USPQ2d 1443, 1445 (Fed. Cir.
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