Ex parte KAMBOJ et al.; Ex parte FOLDES et al. - Page 94


                  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.                                                              

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