Appeal No. 2001-1378
Application No. 08/832,571
that Kapeller, Varticovski and Aronheim 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 e.g., SH2 and SH3 domains.” 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. We find such arguments regarding the PI 3-
kinase constructs disclosed by Klippel 93 and 94, which are not fusion constructs and
which, when combined in vitro, fail to show PI 3-kinase activity, to be relevant with
regard to the expectation of success of one of ordinary skill in the art at the time of the
present invention. In our view, the cited references, as a whole, support appellants'
argument that one of ordinary skill in the art at the time of the invention would perceive
that possibly other DNA sequences or conformational changes are necessary to provide
for an active PI 3-kinase.
The examiner responds, arguing that the problem of inactivity which occurs when
the two subunits produced separately is “overcome when the two subunits are
coexpressed and allowed to associate in vivo. This is precisely what occurs when the
two subunits are co-expressed as a fusion protein in vivo, and at the time the invention
was made the art of making a fusion protein with the desired activity is routine for one of
ordinary skill in the art.” Answer, page 10.
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