BRAKE v. SINGH - Page 3




                     Interference 102,728                                                                                                                                               
                     value because it had no other ‘substantial use’ than to obtain the claimed construct.[4]”                                                                          
                     Singh v. Brake, 222 F.3d 1362, 1370, 55 USPQ2d 1673, 1679 (Fed. Cir. 2000).                                                                                        
                                7.         Accordingly, the Federal Circuit  vacated and remanded (i) “to reconsider                                                                    
                     Singh’s ‘substantial use’ argument,” and (ii) “to reevaluate the totality of the                                                                                   
                     corroborative evidence.”  Singh v. Brake, 1362 F.3d at 1370, 55 USPQ2d at 1679.                                                                                    
                                8.         The Federal Circuit also remanded “for a determination of those issues                                                                       
                     that were properly raised during the earlier proceedings.”  Singh v. Brake, 222 F.3d at                                                                            
                     1371, 55 USPQ2d at 1679.                                                                                                                                           
                                9.         The mandate from the Federal Circuit was received by the Board on                                                                            
                     September 14, 2000.  Paper No. 170.                                                                                                                                
                                10.        On September 19, 2000, an order was entered inviting the parties to file                                                                     
                     briefs addressing the issue of (i) whether Brake sustained its burden of proof in its                                                                              
                     preliminary motion to be accorded the benefit of its Application 06/457,325, filed                                                                                 
                     January 12, 1983; and (ii) Singh’s priority.  Paper No. 171.                                                                                                       


                     II.        Background                                                                                                                                              
                                Alpha (") factor is a protein twelve to thirteen amino acids in length which is                                                                         
                     secreted by the yeast, Saccharomyces cerevisiae.  Singh, Paper No. 28, Exhibit 15                                                                                  



                     to Singh, the 24-mer was employed to construct an invention within the scope of the                                                                                
                     count.  Singh Brief, Paper No. 180, pp. 8-9.                                                                                                                       
                                4 We direct attention to the description of the count, infra.  Claim 1 of Brake is the                                                                  
                     same as Count 1, the sole count in the interference.                                                                                                               
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