Other Cabilly motions
24. Cabilly filed Cabilly miscellaneous motion 1 (Paper 81) and a first motion to
suppress evidence (Paper 167) and a second motion to suppress evidence (Paper 208).
25. Cabilly miscellaneous motion 1 was granted (Paper 85).
Glaxo’s preliminary motion to substitute proposed Count 2
26. Glaxo filed its preliminary motion 5 seeking to substitute proposed Count 2 for
Count 1.
27. Proposed Count 2 reads as follows (Paper 51 at 2):
The invention of claim 1 of U.S. Patent 5,545,403; Claim 1 of U.S. Patent
5,545,404; Claim 1 of U.S. Patent 5,545,405; Claim 53 of Cabilly
Application No. 08/909,611; or Claim 55 of Cabilly Application No.
08/909,611.
28. Proposed Count 2 is the same as Count 1 except it eliminates that portion of
Count 1 directed to ‘611 claim 56.
29. ‘611 claim 56 does not expressly require the treatment of humans or glycosylation
of the antibodies used in treatment.
56 (Paper 51 at 5).
30. In particular, Glaxo argues that the selection of a human as the subject for
treatment and the glycosylation of CHO cells would not have been obvious to one having
ordinary skill in the art (Paper 51 as 12-13).
31. According to Glaxo, Cabilly should not be accorded priority benefit of the ‘419
application for proposed Count 2 for the same reasons Cabilly should not be accorded priority
benefit of the ‘419 application for Count 1 (Paper 51 at 16-17).
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