Interference No. 103,625
Xaa-Thr-Pro-Tyr-Ala-Pro-Glu-Pro-Gly-Ser-Thr-Cys- Arg-Leu-Arg-Glu
where Xaa is hydrogen, a phenylalanine residue (Phe) or the amino acids
sequences Ala-Phe, Val-Ala-Phe, Gln-Val- Ala-Phe, Ala-Gln-Val-Ala-Phe,
Pro-Ala-Gln-Val-Ala-Phe or Leu-Pro-Ala-Gln-Val-Ala-Phe.
LeMaire claims 1-3 and Wallach claims 33, 34, 36-41, 44-46, 62, and 65-68
correspond to the count.
During the preliminary motion stage of this proceeding, Wallach filed a
motion for judgment against LeMaire on the grounds that LeMaire claims 1-3 are
unpatentable under 35 U.S.C. § 102 or 35 U.S.C. § 103 over Engelmann et al., “Two
Tumor Necrosis Factor-Binding Proteins Purified from Human Urine” J. Bio. Chem. 265:
1531-1536 (Jan. 25, 1990) (Paper No. 21). LeMaire argued that they were entitled to the
filing dates of their earlier filed German applications, P 39 15 072 (hereinafter ‘072) filed
May 9, 1989 and P 39 22 089 (hereinafter ‘089) filed July 5, 1989, which dates precede
the publication date of Engelmann et al. and thus the Engelmann et al. reference is not
available prior art (Paper No 42).
The APJ granted Wallach motion (item 1a) over the LeMaire opposition
stating that
LeMaire claims 1-2 are directed to a protein having
a certain molecular weight and a specific amino acid N
terminus and claim 3 is direct to the preparation of the
protein of [sic] said [sic] protein [sic]. Each claim
identifies the specific amino acid N terminus
sequences as a group. Of note each one of the named
sequences include at the very least Thr Pro Tyr Ala Pro
Glu Pro Gly Set [sic] Thr Cys Arg Leu Arg Glu. Neither
3
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