Appeal No. 1997-3221
Application No. 08/249,241
Appellants argue (Brief68, page 8) that “[i]t is entirely possible, given the lack
of sequence information or functional characterization of the alleged GluR4 gene,
that McNamara has isolated a partial clone of a different GluR gene that is
homologous to the rat GluR4 in the short stretch sequenced.” Indeed, McNamara
recognizes this (page 2556, column 2) “[t]hese homologies are based upon the
relatively short DNA sequences as specified in the notes to Table 1.” However,
McNamara (page 2556, column 2) points out that the mismatches identified are
conservative since the identity of the amino acid sequence was 100% for GluR4,
that identical mismatches were identified by Puckett for GluR1 and that in every
instance the homology of the human GluR sequence was higher with its respective
rat cDNA than with rat cDNAs encoding other GluRs. McNamara concludes (page
2556, column 2) “[t]ogether, these data support the conclusion that these cosmid
clones contain the likely human homologs of rat GluR1-4.”
Claims 17 and 19:
The examiner concludes (Answer, page 6) that:
Because McNamara disclosed that humans have a GluR-D gene, as
well as the location of that gene and the fact that a nucleic acid
encoding human GluR-D could be detected by employing a nucleic
acid probe encoding all or part of rat GluR-D, that artisan had more
than a reasonable expectation of successfully isolating cDNAs
encoding human flip and flop GluR-Ds.
Given the fact that Sommer teaches the complete nucleotide sequence
encoding GluR-D flop and flip are available at EMBL/GenBank under accession
numbers M36421 and M38063 respectively, we agree with the examiner that a
68 Paper No. 16, received November 4, 1998.
94
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