Interference No. 104,733
Page No. 12
IV. Opinion
An Administrative Patent Judge ("APJ") declared this interference based, in part,
on statements made during the examination of Lilly's reissue application. UW claim 3 is
directed to a plasmid or transfer vector comprising a string of base pairs identified in the
cDNA sequence of UW Figure 3. During the prosecution of Lilly's reissue application,
Lilly represented to the examiner that Foster ("UW") had deposited a nucleotide
sequence encoding protein C that was identical to the corresponding sequence of
Lilly's claim 1. (UW Preliminary Motion 1, Paper No. 17, pages 6-8, 713, Lilly
Opposition 1, Paper No. 27, p. 3, admitted facts 6-16). According to Lilly:
Applicants submit that this evidence, when viewed as a whole, clearly
supports a conclusion that the two nucleotide differences in the Foster
sequence [UW Figure 3] are due to sequencing errors, and not due to true
differences in cDNA sequence.
Id.
When the interference was declared, the Office was unaware that the purported
"Foster sequence," Accession No. NM00312 was Lillys own sequence. (Paper No.
17, p. 9, 1717, 20; Paper No. 27, p. 3, Lilly stated that it had a good faith belief that its
statements wert, true and that any error was "inadvertent."). In light of the evidence
provided by UW, we find that Lilly's statements regarding the origin of the deposited
sequence were incorrect and that the claimed UW species and Lilly species are
apparently genetic variants. (See, Paper No. 17, p. 4, 58, Paper No. 27, p. admitting
facts 6-16).
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