Appeal No. 1999-1730
Application No. 08/478,205
Background
The specification reports that several luciferase-encoding cDNAs have
been isolated from the beetle Pyrophorus plagiophthalamus. See page 8 (citing
the Wood dissertation). These naturally occurring luciferases vary slightly in their
amino acid sequences and produce light of different colors ranging from green to
orange. Specification, page 7. The specification discloses numerous mutants of
P. plagiophthalamus luciferase. See pages 14-16. The disclosed mutants
contain amino acid variations which differ from those that occur naturally, and
which affect the color of light produced by the mutant luciferases. See id.
Discussion
Claims 1-17, 20-23, 25-27, and 29 are directed to DNA encoding a mutant
luciferases which have an amino acid substitution in a position that does not vary
in the naturally occurring variants. Claim 33 is directed to DNA encoding a
mutant luciferase which has a different amino acid substitution compared to the
naturally occurring variants, albeit in one of the amino acid positions known to
vary among the naturally occurring variants.
The examiner rejected all of the claims as obvious over the Wood
dissertation and Wood (1990). The examiner reasoned that the Wood
dissertation discloses cloning of naturally occurring P. plagiophthalamus
luciferase variants and suggests that such variants, producing light of different
colors, would be useful as reporter genes. Examiner’s Answer, pages 5-6. The
examiner noted that the Wood dissertation shows that changes in the amino acid
positions recited in claim 33 (i.e., positions 223, 238, and 247) account for most
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