Appeal No. 1997-3221
Application No. 08/249,241
IV. The GLUR4 Subclass:
Appeal No. 2000-1779
Application No. 08/473,204
Claims 17 and 3164 are illustrative of the subject matter on appeal and are
reproduced below:
17. A membrane preparation that contains human GluR4B protein, said
membrane preparation being derived from a cellular host having
incorporated therein a heterologous polynucleotide comprising a region
that encodes human GluR4B.
31. A membrane preparation as claimed in claim 17, wherein the human
GluR4B protein comprises amino acid residues 1-881 of SEQ-ID NO:2.
GROUNDS OF REJECTION65
Claims66 17, 19 and 31 are rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of McNamara and Sommer ‘90.
We affirm the rejection of claims 17 and 19 under 35 U.S.C. § 103. We
reverse the rejection of claim 31 under 35 U.S.C. § 103.
64 We note that claim 31 was incorrectly presented in the appendix of Appellants’
Brief (Paper No. 16, received November 4, 1998). Claim 31 was amended in
Appellants’ response received August 13, 1997 (Paper No. 7). Claim 31 is
correctly reproduced herein.
65 We note the examiner’s reference at pages 7-9 of the Answer to Puckett et al.
“Molecular cloning and chromosomal localization of one of the human glutamate
receptor genes,” Proceedings of the National Academy of Science, USA, Vol. 88,
pp. 7557-561 (1991), and to Sun et al. “Molecular cloning, chromosomal mapping,
and functional expression of human brain glutamate receptors,” Proceedings of the
National Academy of Science, USA, Vol. 89, pp. 1443-447 (1992). However, we
remind the examiner that “[w]here a reference is relied on to support a rejection,
whether or not in a ‘minor capacity,’ there would appear to be no excuse for not
positively including the reference in the statement of the rejection. In re Hoch, 428
F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970).
66 We note the following typographical error in the examiner’s statement of the
rejection at page 3 of the Answer, “[c]laims 17 to 19 and 31,” should read --[c]laims
89
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