Appeal No. 1997-3221
Application No. 08/249,241
Where the examiner fails to establish a prima facie case, the rejection is
improper and will be overturned. In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596,
1598 (Fed. Cir. 1988).
Accordingly, we reverse the examiner’s rejection of claims 1-11, 15 and 16
under 35 U.S.C. § 103.
Other matters:
The examiner and appellants should reconsider the scope of claim 7 to
determine whether the receptor is required to be present on the membrane.81
Summary:
We affirm the examiner’s rejection of claim 15 under 35 U.S.C. § 112,
second paragraph.
We remand the application to the examiner to further develop the rejection of
claim 15 under 35 U.S.C. § 102(b) as being anticipated by the cDNA that was
described in Figure 2 on page 33 of Moriyoshi.
We reverse the examiner’s rejection of claims 1-11, 14 and 15 under 35
U.S.C. § 103 as being unpatentable over Moriyoshi in view of Puckett, Grandy and
Zhou.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 CFR 1.136(a).
AFFIRMED-IN-PART and REMANDED
81 Compare Appeal No. 2000-1780.
110
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