Appeal No. 1999-1393
Application No. 08/242,344
The examiner states (Answer46, page 5) that:
Cutting et al. clearly shows that every element of the claimed method,
except for the particular DNA employed therein, was known in the art
in the combination claimed prior to the making of the instant invention.
To have incorporated a cDNA encoding a human glutamate receptor
subunit like the one that was described by Puckett et al., or any
functionally equivalent allelic variant thereof, in place of the cDNA of
Cutting et al. to permit the characterization of the human glutamate
receptor encoded thereby would have been prima facie obvious to an
artisan of ordinary skill in the art of molecular biology in view of this
combination of references at the time that the instant invention was
made.
With regard to the Puckett sequence, the examiner states (Answer, page
4):
Because the cDNAs encoding the glutamate receptor subunit
of the instant invention and GluH1 of Puckett et al. were both isolated
from human brain cDNA libraries by probing those libraries with a
DNA probe encoding part of the rat receptor subunit GluR1 and
because the amino acid sequence encoded thereby are identical in
898 out of 906 amino acid residues (99.1%, including signal
sequence) it is more than reasonable to conclude that they are
nothing more than allelic variants of the same protein and, in the
absence of unexpected properties, either of these DNAs would have
been prima facie obvious in view of the other at the time of the instant
invention.
The claims on appeal are drawn to “[a] method of assaying a test ligand”
using a human GluR1B (having a specific SEQ ID NO.) receptor-producing cell, or
membrane preparation. However, it is obviously essential to the examiner’s
rejection that a cDNA encoding the GluR1B receptor must first be successfully
isolated. Once isolated the cDNA is used to engineer a cell to express the
receptor, and then the claimed method can be performed.
46 Paper No. 18, mailed September 23, 1996.
47
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