Appeal No. 1997-3221
Application No. 08/249,241
The rejection under 35 U.S.C. § 103:
The examiner explains (Answer74, page 4) that while Keinanen do not teach
using human GluR4B, the reference teaches a method of assaying interactions
using a cellular host, or membrane derived from a cellular host, that expresses the
rat homolog of human GluR4B. The examiner relies upon Sommer ‘90 for the
teaching, inter alia, that “GluR exists as a flip or flop (A or B) form.” See Answer,
page 5. The examiner explains at page 6 of the Answer, that McNamara obtained a
cosmid clone containing a portion of human GluR4, and that the nucleic acid of this
GluR4 was 93% identical to the rat GluR4B.
At page 8 of the Answer, the examiner concludes that:
It would have been obvious to a person of ordinary skill in the
art at the time the invention was made to use the assay of Keinanen et
al. using a human cDNA for heterologous GluR4B receptor
expression obtained by using the DNA of McNamara et al. as a
radiolabeled probe to screen a commercially available human brain
or placental cDNA library and subcloning the isolated library clone into
the pCDM8 plasmid and transfecting a eukaryotic cell of heterologous
receptor expression by the screening, subcloning, and transfection
methods taught by Keinanen et al.
The examiner’s rejection hinges on the rationale that it would be obvious to
obtain the human GluR4B cDNA, and once obtained, to introduce the cDNA into a
system whereby the claimed assay could be performed. It appears to us that the
examiner’s rejection of the claims in the present application under 35 U.S.C. §
103 is inconsistent with the determination that claims 1, 4 and 8 of United States
74 Paper No. 21, mailed January 22, 1999.
100
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