Appeal No. 2006-0381 Page 5
Application No. 09/729,133
Appellant also argues that bioluminescent systems and chemiluminescent
systems are distinct:
Often substances present in a chemiluminescent system are incompatible
with the bioluminescent fluorescent proteins of bioluminescent systems.
For example, the Halbritter ‘631 reference teaches that “the preferred
chemiluminescent agent includes an oxalate diester which reacts with a
peroxide and a fluorescer to provide the emission of light.” . . . When
peroxide contacts a bioluminescent component, such as a fluorescent
protein, it destroys the coelenterazine necessary to allow the
bioluminescent reaction to take place by destroying the oxygen.
Accordingly, one skilled in the art would not replace the chemiluminescent
system of Halbritter ‘631 with a bioluminescent fluorescent protein.
Appeal Brief, page 5.
We find this argument unpersuasive, for the reasons discussed on pages 11-15
of the Examiner’s Answer. To summarize, unlike luciferase, GFP does not require
oxygen and a substrate (e.g., coelenterazine) to generate light. See the specification at
page 36 (“The native [aequorin] protein contains oxygen and a heterocyclic compound
coelenterazine, a luciferin, . . . bound thereto. . . . Upon addition of trace amounts Ca2+
. . . , it undergoes a conformational change th[at] catalyzes the oxidation of the bound
coelenterazine using the protein-bound oxygen. Energy from this oxidation is released
as a flash of blue light.”) and page 59 (“GFPs are activated by blue light to emit green
light and thus may be used in the absence of luciferase and in conjunction with an
external light source.”).
In addition, the basis of the rejection is not that it would be obvious to add the
A. victoria GFP to the chemiluminescent system described by Halbritter; there would be
no need for A. victoria GFP in the bubble-making solution if the chemiluminescent
system were retained. The examiner’s rejection is based on the obviousness of
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