Ex parte KAMBOJ et al.; Ex parte FOLDES et al. - Page 91


                  Appeal No.  1999-2200                                                                                    
                  Application No.  08/896,063                                                                              
                                the fact that a nucleic acid encoding human GluR-D                                         
                                could be detected by employing a nucleic acid probe                                        
                                encoding all or part of rat GluR-D, that artisan had more                                  
                                than a reasonable expectation of successfully isolating                                    
                                cDNAs encoding human flip and flop GluR-Ds.                                                
                         The examiner’s position is that once isolated by the combined teachings of                        
                  McNamara and Sommer ‘90, the GluR4B cDNA could be placed in a suitable                                   
                  vector for expression in a host cell from which a membrane preparation as claimed                        
                  could be derived.  However, the examiner’s rejection hinges on the rationale that it                     
                  would be obvious to obtain a GluR4B cDNA.                                                                
                         With regard to the examiner’s position, we note that the instant application is                   
                  a divisional application of Serial No. 08/259,164, now United States Patent No.                          
                  5,643,785 (‘785).  It appears that the examiner’s rejection of claim 31 in the present                   
                  application under 35 U.S.C. § 103 is inconsistent with the determination that claims                     
                  1, 4 and 8 of ‘785 are patentable.  Claims 1, 4 and 8 of the ‘785 patent read as                         
                  follows:                                                                                                 
                         1. An isolated polynucleotide that encodes an AMPA-binding human                                  
                            GluR4B receptor having the sequence of amino acid residues 1-881 of                            
                            SEQ ID NO:2.                                                                                   
                         4. A recombinant DNA vector comprising a polynucleotide that encodes an                           
                            AMPA-binding human GluR4B receptor having the sequence of amino                                
                            acid residues 1-881 of SEQ ID NO:2.                                                            
                         8. A mammalian cell genetically engineered to produce GluR4B receptor,                            
                            said cell containing a heterologous polynucleotide that encodes an                             
                            AMPA-binding human GluR4B receptor having the sequence of amino                                
                            acid residues 1-881 of SEQ ID NO:2.                                                            






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