Interference 102,728
The same analysis applies to the formula set forth in claim 5 of the ‘325
Application.
We note that Brake points to paragraph 3 of the declaration of Dr. Tekamp-
Olsen15 to establish that those of ordinary skill in the art would have understood the ‘325
Application to describe a compound wherein “n” is “0.” Paper No. 15, p. 10; see also,
para. 9 on p. 10, above. We find the declaration credible and consistent with the plain
meaning of the words in the Brake 1 specification.
Accordingly, in view of the foregoing, we find that the compound [L-(R-S-
(GAXYCX)n - Gene *)y] set forth on page 4, line 21, and claim 5, of Brake 1 expressly
describe a DNA construct which lacks the codons which encode the “glu-ala” residues
of the " factor spacer sequence when “n=0.” Thus, we find that Brake 1 “conveys with
reasonable clarity to those skilled in the art that, as of the filing date sought,” Brake was
in possession of a species within the scope of Count 1. Vas-Cath Inc. v. Mahurkar, 935
F.2d at 1563, 19 USPQ2d at 1117.
b. Enablement
Since we find that Brake 1 provides adequate written descriptive support for a
DNA construct within the scope of Count 1, the issue now becomes whether the ‘325
Application disclosure, in combination with knowledge generally available in the art,
15 As discussed above, Singh argues that Brake “withdrew” four of the
declarations supporting Preliminary Motion 2 (Paper No. 15) and the Reply (Paper No.
44). Thus, we have only considered those declarations which are not contested. To
that end, in our consideration of Brake’s preliminary motion, we have found it necessary
to rely only on the declaration of Dr. Tekamp-Olson.
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