Appeal No. 2006-0381 Page 3
Application No. 09/729,133
5. The combination of claim 1, wherein the article of manufacture is bubbles,
a bubble making toy or bubble bath.
Claim 5 is directed to the combination of a bioluminescent fluorescent protein
and, e.g., “bubbles,” which we interpret to include a bubble-making composition. The
recited “bioluminescent fluorescent protein” includes GFP, BFP, and phycobiliprotein
(specification, page 114) but does not include luciferase: claim 19, which has been
withdrawn from consideration, depends on claim 1 and adds the limitation that the
combination “further compris[es] a luciferase, a luciferin or a luciferase and a luciferin.”
2. Obviousness
The examiner rejected claims 1-3, 5, and 8-14 under 35 U.S.C. § 103 as obvious
in view of Halbritter1 and Prasher.2 The examiner reasoned that Halbritter teaches
bubble-making solutions containing a chemiluminescent light-generating system, and
that Prasher teaches that the A. victoria green-fluorescent protein is “highly fluorescent”
(Prasher, abstract) and “stable to a variety of harsh conditions including heat, extreme
pH, and chemical denaturants” (id., page 230, left-hand column).
The examiner concluded that it would have been obvious to substitute the
fluorescent protein taught by Prasher for the chemiluminescent system used by
Halbritter. The examiner found that Prasher’s teaching that A. victoria GFP is stable to
a variety of harsh conditions would have suggested its inclusion in a bubble-making
solution, “which will include surfactants and that may be stored under a variety of
conditions by consumers.” Examiner’s Answer, page 5.
1 Halbritter, U.S. Patent 5,246,631, issued September 21, 1993
2 Prasher et al., “Primary structure of the Aequorea victoria green-fluorescent protein,” Gene, Vol. 111,
pp. 229-233 (1992)
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