Appeal No. 1997-3221
Application No. 08/249,241
the time the application was filed, had possession of a polynucleotide encoding a
high affinity kainate binding human EAA5 receptor subunit, and thereby did not have
a method of assaying a test ligand using a genetically engineered cell that produces
a high affinity kainate-binding human EAA5 receptor.
We note that a rejection based on these facts was made in the Examiner’s
Answer of Application No. 08/377,503 (Appeal No. 1999-0399). In response to this
ground of rejection appellants’ amended the claim to remove the term “high affinity.”
Time Period for Response for Appeal No. 1998-0217:
This opinion in Appeal No. 1998-0217 contains a new ground of rejection
pursuant to 37 CFR § 1.196(b). 37 CFR § 1.196(b) provides that, “[a] new ground
of rejection shall not be considered final for purposes of judicial review.”
37 CFR § 1.196(b) also provides that the appellants, WITHIN TWO MONTHS
FROM THE DATE OF THE DECISION, must exercise one of the two following
options with respect to the new ground of rejection to avoid termination of
proceedings (§ 1.197(c)) as to the rejected claims:
(1) Submit an appropriate amendment of the claims so rejected or a
showing of facts relating to the claims so rejected, or both, and have the
matter reconsidered by the examiner, in which event the application will
be remanded to the examiner ….
(2) Request that the application be reheard under § 1.197(b) by the Board of
Patent Appeals and Interferences upon the same record ….
Summary:
We reverse the examiner’s rejection of claims 35, 37 and 38 under 35
U.S.C. § 103 as being unpatentable over Bettler in view of Puckett.
37
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