Interference 102,760
"therapeutically effective amount" of buspirone in claim 1,6
and although not expressly claimed, the dosages are species
within the broad genus of "a therapeutically effective
amount" of buspirone. See Dement brief, pp. 11-12.
Therefore, Dement, Schwimmer and Rosekind each contributed to
the subject matter of at least one claim of Dement application
07/695,325. Compare Ethicon, 135 F.3d at 1463, 45 USPQ2d at
1550-51 ("The contributor of any disclosed means of a means-
plus-function claim element is a joint inventor as to that
claim, unless one asserting sole inventorship can show that
the contribution of that means was simply a reduction to
practice of the sole inventor's broader concept.").
Accordingly, there is no violation of 35 U.S.C. § 116, and the
motion for judgment against senior party Dement on the grounds
that its claims are unpatentable under 35 U.S.C. § 102(f) must
fail. Rapoport has failed to establish otherwise. See Hess,
106 F.3d at 980, 41 USPQ2d at 1785 (the burden of showing
misjoinder must be proved by clear and convincing evidence)
(quoting Garrett, 422 F.2d at 880, 164 USPQ at 526).
6 Claim 1 is the sole independent claim in the Dement
application.
46
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