Interference No. 103,203
encoding the mature human tissue factor protein, the Lawn et al. application would not
have enabled one of ordinary skill in the art to make and use an invention corresponding to
Count 2. Accordingly, we do not find that Edgington et al. have satisfied their burden (of
persuasion) of establishing that the Lawn et al. benefit applications do not comply with the
best mode and written description requirements
of 35 U.S.C. § 112, first paragraph.
(3) Lawn et al.’s Preliminary Motion 3 (Paper No. 187) is DISMISSED AS
IMPROPER. As noted in the Decision on Preliminary Motions, “Issues raised in
dismissed motions are not entitled to review on their merits at final hearing. See[,] inter
alia, 37 C.F.R. [§] 1.655; Land v. Dreyer, 155 F.2d 383, 386, 69 USPQ 602, 604 (CCPA
1946); and Jacobs v. Moriarity, 6 USPQ2d 1799, 1802 (Bd. Pat. App. & Int. 1988).”
Paper No. 220, p. 7, fn 3. We point out, however, that minor informalities in the application
can be corrected by the examiner prior to issue. Manual Of Patent Examining Procedures
(M.P.E.P.) § 1320.04.
(4) Nemerson et al.’s motion to add Dr. Spicer as a co-inventor is GRANTED for
the reasons set forth therein.
Edgington et al. argue that the “Statement of the Material Facts, etc.” provided by
Nemerson et al. to support the motion, and the accompanying Petition, are not sworn
evidence, but are mere attorney argument. Paper No. 38, p. 1. Edgington et al. further
argue that there are (i) inconsistencies in the declarations of the Nemerson et al. co-
inventors, and (ii) discrepancies between what the Nemerson et al.
specification teaches and what Dr. Spicer said that she did and what Drs. Nemerson and
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