Discussion
1. Claim construction
Claims 158-185 are pending and on appeal. Claims 158 and 159 are
representative and read as follows:
158. An isolated nucleic acid molecule encoding a bitter taste receptor selected from
the group consisting of
(i) an isolated nucleic acid sequence having the nucleic acid sequence
contained in SEQ ID NO:7;
(ii) a nucleic acid sequence that encodes the bitter taste polypeptide
contained in SEQ ID NO:8;
(iii) an isolated DNA sequence that hybridizes under stringent hybridization
conditions to the nucleic acid sequence contained in SEQ ID NO:7 wherein stringent
hybridization conditions are hybridization in 5 x SSC, 1% SDS, incubated at 65°C and
wash in 0.2 x 55C and 0.1% SDS at 65°C, wherein said hybridization and wash steps
are each effected for at least 1 minute.
159. An isolated nucleic acid molecule encoding a bitter taste receptor polypeptide
which polypeptide comprises at least 95% identity to the taste receptor polypeptide
contained in SEQ ID NO:8, wherein sequence identity is determined by any on of the
BLAST, BLASST 2.0 or PILE UP algorithms.
Thus, claim 158 is directed to SEQ ID NO:7, another nucleic acid that encodes
the amino acid sequence of SEQ ID NO:8, or a DNA sequence that hybridizes under
specified, stringent conditions to SEQ ID NO:7. Claim 159 is directed to a nucleic acid
that is at least 95% identical to SEQ ID NO:7. Both claims also require that the nucleic
acids encode functional bitter taste receptors.
2. Utility
The examiner rejected claims 158-185 under 35 U.S.C. §§ 101 and 112, first
paragraph, on the basis that the specification does not disclose a patentable utility for
the claimed nucleic acids. The examiner reasoned that
[t]he concept of “bitter taste” is known to involve multiple and as yet poorly
characterized transduction schemes. . . . These transduction schemes are
also thought to involve a large diversity of receptors. . . . The specification
has given no indication as to which of these [bitter-tasting] compounds is
expected to bind to and activate SEQ ID NO:8. Without such knowledge,
the artisan could not use the protein to manipulate any aspect of the
senses involving taste.
Examiner’s Answer, pages 4-5. The examiner acknowledged that the “specification
puts forth that the polypeptides are useful for ‘representing the perception of taste
and/or for predicting the perception of taste in a mammal’,” “as probes to dissect taste-
induced behaviors,” and “in a screening method to determine what molecules may
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