Appeal No. 2001-1378
Application No. 08/832,571
We disagree. In particular, and notwithstanding appellants' arguments with
respect to wild-type PI 3-kinase, Hu describes a constitutively active PI 3 kinase fusion
protein. Arguments relating to activation of PI 3-kinase, are not relevant to the
constitutively active form of PI 3-kinase disclosed by Hu. This is also true with respect
to appellants' teaching away arguments proposed for Kapeller, Varticovski and
Aronheim. Appellants argue that these references teach that “other functional domains
of p85, which are not components of the claimed polynucleotide fusion constructs (nor
encoded by them), may be important for protein-protein interactions and required for PI
3-kinase activity.” Brief, page 14. Appellants argue that Aronheim teaches that
localization to the plasma membrane alone may not be sufficient to produce catalytically
active PI 3-kinase. Brief, page 15. We find such arguments are not relevant to the PI
3-kinase fusion protein disclosed by Hu which is already constitutively active.
Appellants argue there is no motivation to combine the cited art and that the
examiner applies an “obvious to try” argument which is not the appropriate legal
standard. Brief, page 17. Appellants argue that the cited references “fail to teach or
suggest that the addition of membrane localization signals to a constitutively active PI 3-
kinase fusion construct would enhance the properties of that construct.” Id. As
discussed herein, we find the cited references would have provided the requisite
suggestion and likelihood of success on the part of one of ordinary skill in the art, that
the localization of PI 3-kinase to the plasma membrane would have resulted in an
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