Appeal 2007-1819 Application 09/886,055 in the art would have reasonably expected that Appellants’ SEQ ID NO: 55 is an olfactory receptor that could have been used in the method taught by Krautwurst with a reasonable expectation of success in representing sensory perception” (supra p. 9). On the contrary, given the evidence of record, it is at least more likely than not SEQ ID NO:27 is an olfactory receptor. (FFs 4- 6.) Certainly, the record as a whole would have suggested that it is. This is particularly true in that SEQ ID NO:27 is undeniably a GPCR receptor and therefore more likely than not an olfactory receptor, as the “largest subfamily of GPCRs . . . are the olfactory receptors”. (Burford, col. 2, ll. 1- 3.) Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(vii) ("Any arguments or authorities not included in the brief or a reply brief ... will be refused consideration by the Board, unless good cause is shown."). Thus, to the extent Appellants had an argument or evidence with which they could have rebutted the Examiner’s prima facie case of obviousness and did not do so, the Board should not attempt to fill that void with its own reasoning on Appellants’ behalf. Based on the Examiner’s undisputed findings and those above, I conclude it would have been obvious to try using each of the 24 polypeptides Burford suggests are olfactory receptor sequences in Krautwurst’s assay with a reasonable expectation of success. (FFs 8-9.) “Obvious to try” can be an appropriate test in certain situations. When there is motivation “to solve a problem,” such as the “identification, on a large scale, of cognate receptor-odorant interactions” (Krautwurst 917, col. 1), and “there are a finite number of identified, predictable solutions,” such as the limited number of potential olfactory receptor sequences disclosed in 17Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: September 9, 2013