1 an interference-in-fact existed between proteins claimed by Stryker and
2 proteins claimed by Genetics Institute. The invention of the parties as set
3 out in the sole count of the interference is
4 1. A purified BMP-8 protein or an isolated OP-2
5 protein comprising the sequence described by residues 1
6 to 402 of Seq. ID No. 28 of Patent 5,266,683 which
7 protein induces new bone formation in mammals.
8 Paper 1, p. 3. The Declaration designated Stryker’s Claims 21-26,
9 27/21, 28, 29, 39, 45-54, 58 and Genetics Institute’s Claims 1
10 and 26-29 as corresponding to the count.
11 The parties were authorized to file certain motions, including
12 motions asserting that the parties’ claims did not interfere and priority
13 of invention. A schedule was set for filing the motions and priority
14 statements. Paper 3. The filing of the priority motions, while
15 authorized, was deferred until the priority phase of the interference.
16 Paper 24, p. 2. An expedited schedule was set for the no interference-
17 in-fact motions. Paper 24, p.1. Those motions were denied
18 (Paper 36) as was Stryker’s request for reconsideration of the decision
19 (Paper 42).
20 The parties’ priority statements were due May 11, 2007.
21 Paper 43, p. 3. No priority statements were filed. Additionally, the
22 parties filed a joint statement that neither party will be filing a priority
23 statement or any other authorized motions. Paper 44.
24 As the senior party, Genetics Institute need not file a priority
25 statement, nor file a priority motion. Rather, Genetics Institute may
26 rely on its effective filing date for priority. Stryker, however, as the
27 junior party must file a priority statement in order to put on a priority
28 case. 37 CFR § 41.204(b). Stryker’s failure to file a priority
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Last modified: September 9, 2013