Appeal No. 1999-1393
Application No. 08/242,344
Appeal No. 2000-1780
Application No. 08/403,663
Claim 2272 is illustrative of the subject matter on appeal and is reproduced below:
22. A method of assaying interaction between a test ligand and a receptor of
the human central nervous system, which comprises incubating the test
ligand with a cellular host or with membrane preparation derived from
said cellular host, said cellular host having incorporated expressibly
therein a heterologous polynucleotide encoding the human GluR4B
receptor having the amino acid sequence of residues 1-881 of SEQ ID
NO: 2 or an AMPA-binding fragment of said GluR4B receptor having the
amino acid sequence that is a fragment of the amino acid sequence of
residues 1-881 of SEQ ID NO: 2, and determining the extent of
interaction between said GluR4B receptor or said fragment and the test
ligand.
GROUNDS OF REJECTION73
Claims 22-23 and 34-38 are rejected under 35 U.S.C. § 103 as being
unpatentable over Keinanen in view of Sommer ’90 and McNamara.
We reverse.
72 We note that claim 22 was incorrectly presented in the appendix of Appellants’
Brief (Paper No. 20, received November 3, 1998). Claim 22 was amended in
appellants’ amendment received May 11, 1995 (Paper No. 6). Claim 22 is correctly
reproduced herein.
73 We note the examiner’s reference at pages 7 and 10 of the Answer to Puckett et
al. “Molecular cloning and chromosomal localization of one of the human glutamate
receptor genes,” Proceedings of the National Academy of Science, USA, Vol. 88,
pp. 7557-561 (1991), and to Sun et al. “Molecular cloning, chromosomal mapping,
and functional expression of human brain glutamate receptors,” Proceedings of the
National Academy of Science, USA, Vol. 89, pp. 1443-447 (1992). However, we
remind the examiner that “[w]here a reference is relied on to support a rejection,
whether or not in a ‘minor capacity,’ there would appear to be no excuse for not
positively including the reference in the statement of the rejection. In re Hoch, 428
F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970).
99
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