Appeal No. 2001-1378
Application No. 08/832,571
(ii) a nucleotide sequence encoding a derivative or mutant of (a)(i) having single
or multiple nucleotide substitutions, deletions or additions, said sequence encoding said
derivative or mutant of (a)(i) having at least 50% identity to a native nucleotide
sequence encoding p110, said derivative or mutant having 60-90% sequence identity to
the native amino acid sequence of the p110 subunit of PI 3-kinase and an activity of the
p110 subunit of PI 3-kinase protein; and
(b) a second nucleotide sequence comprising a sequence encoding a cell
membrane targeting sequence, said second sequence being attached to the 5' or 3' end
of said first sequence.
In interpreting claim 1, we note the open ended claim language “comprising” both
in the preamble of the claim and in the description of the first nucleotide sequence
leaves the polynucleotide sequence (fusion protein) open to the inclusion of additional
components. The term “comprising” is inclusive and does not exclude additional,
unrecited elements or method steps. Moleculon Research Corp. v. CBS, Inc., 793 F.2d
1261, 229 USPQ 805 (Fed. Cir. 1986), cert. denied, 479 U.S. 1030 (1987).
35 U.S.C. ' 103
Claims 1-9, 15-16, 22-30 and 33-34 stand rejected under 35 U.S.C. § 103(a) as
obvious over Hu in view of Kapeller, Varticovski and Aronheim.
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