DECISION AND JUDGMENT
This interference is between an application filed by Engvall et al. (Engvall) and a patent to
David et al. (David). The real parties in interest are the respective assignees, La Jolla Cancer
Research Foundation (La Jolla) and Hybritech, Inc. (Hybritech). We award judgment against Engvall.
Therefore, Engvall is not entitled to a patent claiming the subject matter set out in claims 1 to 45 of
application 06/539,754. David is entitled to claims 1 to 29 of patent 4,376,110.
BACKGROUND
The David patent issued on March 8, 1983. The patent has resulted in at least two appeals
to the United States Court of Appeal for the Federal Circuit, Hybritech Inc. v. Monoclonal
Antibodies, Inc., 802 F.2d 1367, 231 USPQ 81 (Fed. Cir. 1986), cert. denied, 480 U.S. 947 (1987)
and Hybritech Inc. v. Abbott Laboratories, 849 F.2d 1446, 7 USPQ2d 1191 (Fed. Cir. 1988).
ISSUES
The following issues were raised by the parties at final hearing:
1. Are Engvall's claims 8 to 27 unpatentable under 35 U.S.C. § 112, ¶1, for failure to
satisfy the written description requirement?
2. Has Engvall proved priority of invention with respect to the subject matter of the
count?
3. Has Engvall proved inequitable conduct by David?
THE SUBJECT MATTER OF THE INTERFERENCE
The sole count in this interference provides:
In an immunometric assay to determine the presence or concentration of an
antigenic substance in a sample of a fluid comprising forming a ternary
complex of
a first labeled antibody,
said antigenic substance, and
a second antibody
said second antibody being bound to a solid carrier insoluble
in said fluid
wherein the presence of the antigenic substance in the samples is determined
by measuring either the amount of labeled antibody bound to the solid carrier
or the amount of unreacted labeled antibody,
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