Interference No. 104,272 Paper No. 56
Lerner v. Lerner v. Winter Page 4
generally, not to vectors producing any particular proteins.
There is nothing in the record to suggest that one skilled in
the art would have been motivated to select the particular
species of polynucleotides as claimed within the '762
application in view of the '761 claims.
Accordingly, since the '761 claims would not have been
anticipated by, or obvious in view of, the '762 claims, and
vice versa, no interference-in-fact exists between the claims
of the two applications.
A final decision awards judgment based on a count.
37 CFR § 1.658(a). A claim designated as corresponding to a
count is involved in the interference. 37 CFR § 1.601(f).
Conversely, a claim not designated as corresponding is not
involved in the interference. Even if claims might have been
properly designated as corresponding, they are not involved
for the purposes of judgment if they are not designated as
corresponding. Junior party Lerner and Sorge submitted
amendments in its '761 application adding claims (Paper Nos.
22 and 27), but there is no motion to designate additional
claims as corresponding to the count. See 37 CFR § 1.633(c).
Consequently, the claims proposed to be added by amendment are
not before us for the purposes of this judgment.
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