Appeal No. 2001-0940 Page 5
Application No. 08/467,712
to utilize a ternary conjugate of oxidoreductase, NAD and [an electrochemiluminescent]
substance” in Nacamulli’s assay “because of the better kinetic properties of the
conjugate and lower cofactor/[electrochemiluminescent] reagent requirements.” Paper
No. 4, page 5. While the examiner does not identify anything in particular in either
reference which supports this assertion of better kinetic properties, we note that Yomo
does observe rate acceleration due to conjugation of the reaction components. Yomo,
page 763.
Nevertheless, the examiner does not dispute appellant’s characterization of the
reactions described in Nacamulli and Yomo, nor does the examiner dispute appellant’s
assertion that Ru(bpy)3 and EP “have completely different functionalities” (Reply Brief,
page 14) in the reactions. In our view, the fact that Yomo observed rate acceleration
(presumably, the “better kinetic properties” referred to by the examiner) due to
conjugation of the components of one enzymatic reaction would not have prompted one
skilled in the art to conjugate the components of Nacamulli’s reaction, given the
differences between these two reactions, and the fact that Nacamulli intentionally slows
the rate of reaction. We agree with appellant that “[o]ne of ordinary skill in that art need
only juxtapose the two mechanisms of action for Ru(bpy)3 in Nacamulli and EP in the
ternary complex of Yomo to realize that one is not a reasonable substitute for the other”
(Reply Brief, page 14) and that “the prior art of record does not teach or suggest . . .
ternary complexes that comprise [electrochemiluminescent] signaling molecules” (Id.,
page 13).
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