Appeal No. 1999-1393
Application No. 08/242,344
concludes (Answer, page 12) that the two sequences “obviously correspond to
allelic variations of the same protein and appear to be functionally indistinguishable.
Therefore, a DNA encoding either of these variants would have been prima facie
obvious in light of the combination of references cited above at the time that the
instant invention was made.”
Claim 1:
Appellants argue (Brief, pages 10) that the claimed GluR3 sequences differ
from those described by the prior art.
The examiner’s rejection (Answer, page 11) finds that it would have been
prima facie obvious to isolate GluR3 from a human cDNA library by probing that
library with a rat nucleic acid probe taught by Heinemann, using methodology of
Sun, Puckett, Schofield, and Grenningloh.
Sun teaches (page 1443, Materials and Methods, column 2) that a probe
was amplified using two PCR primers derived from GluR1. This probe was then
used (Sun, page 1444, bridging paragraph, columns 1-2) for ”[h]ybridization
screening [of a human brain cDNA library] at high stringency.” This screen yielded
four positive clones, derived from two different transcripts. The first clone was found
to be homologous to rat GluR1, the second clone was found to be homologous to
GluR2. Sun, page 1444, bridging paragraph, columns 1-2.
At this point we find that under high stringency hybridization conditions, a
probe for GluR1 cross-reacts with GluR2. Little more is provided in Sun, other than
the “note” at page 1447 which states “[a]fter submission of this manuscript a paper
[referring to Puckett] appeared reporting …GluH1. This cDNA shows differences
with HBGR1 … in a region corresponding to the alternatively spliced
73
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