Appeal No. 1999-1393
Application No. 08/242,344
GROUNDS OF REJECTION35
Claims 26, 27, 40, 45 and 47-52 are rejected under 35 U.S.C. § 103 as
being unpatentable over Egebjerg in view of either Sun or Puckett.
Claim 28 is rejected under 35 U.S.C. § 103 as being unpatentable over
Egebjerg, Puckett and Sun as applied to claim 26, 27, 40, 45 and 47-52 and further
in view of Cutting.
We reverse
Claims 26 and 45:
The examiner’s basis for this rejection is that it would have been obvious to
identify and isolate a nucleic acid encoding the EAA4 receptor subunit, engineer a
cell to express this subunit and then obtain a method of assaying as claimed. To
support this rejection the examiner references (Answer36, page 4) Egebjerg (Figure
1, page 746) for a teaching of the rat GluR6 receptor subunit, and a binding assay
using a cell expressing this GluR6 receptor subunit. This
35 We note the Communication from the examiner (Paper No. 18, mailed May 16,
1997) wherein the examiner refused to enter appellants’ Reply Brief (Paper No. 17,
received March 31, 1997). Appellants’ petitioned (Paper No. 19, received July 16,
1997) under 37 CFR § 1.181 the refusal to enter the Reply Brief. The Decision on
the Petition (Paper No. 20, mailed August 7, 1997), granting the petition, states in
part “[t]he application will be forwarded to the examiner for entry of the reply brief
and for any other appropriate action.” However, no further action by the examiner
was taken in response to the Decision on the Petition. Under these circumstances,
we have considered appellants’ Reply Brief, rather than remand the application for
the examiner to comply with the Decision on the Petition.
36 Paper No. 16, mailed January 29, 1997.
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