Appeal No. 1997-3221
Application No. 08/249,241
With regard to the examiner’s approach, we note that the instant application
is a divisional application of Application No. 07/896,611, now abandoned.
Application No. 08/254,573, now United Sates Patent No. 5,610,032 (‘032) is a
direct continuation of 07/896,611. 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 the claims of ‘032 are patentable.
For example, claims 1, 8, 9 and 10 of the ‘032 patent read as follows:
1. An isolated polynucleotide which encodes a protein having the
sequence of SEQ ID NO:2.
8. A cellular host having incorporated therein a heterologous
polynucleotide which encodes a protein having the sequence of SEQ ID
NO: 2.
9. A cellular host according to claim 8, which is a mammalian cell.
10. A membrane preparation derived from a cellular host as defined in
claim 9.
In addition, Puckett relied upon the examiner in this appeal is 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
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