Interference No. 103,625
072 nor 089 describe a sequence which includes the
end portion, Leu Arg Glu, of the
4
recited sequence. In addition, 072 identifies X [sic, X ]
4
as probably Thr where claims 1-3 require Pro at this
position. (emphasis added)(See Paper No. 80, page
5)
In view of the granting of the Wallach motion (item 1a) for judgment on the grounds of
unpatentability of LeMaire claims 1-3, the APJ dismissed the remaining Wallach and
3
LeMaire motions (Wallach motions 1b-1d, 2-5 and LeMaire motions 1-11 identified as
items 1b, 1c, [sic: 1d] and 2-16 in the decision on motion) and placed LeMaire under an
order to show cause why judgment should not be entered against them.
In response to that order, LeMaire requested final hearing. Both parties filed
records. Neither party took testimony.
Wallach is senior party, having been accorded benefit of the filing date of
May 18, 1989 of their earlier filed Israel application, No. 90339, filed May 18, 1989.
4
The issues(s) presented for our consideration (See Paper No. 86 by APJ)
are as follows:
The remaining motions were deemed moot in view of the fact that all of LeMaire3
claims corresponding to the count were found to be unpatentable to LeMaire and LeMaire
failed to overcome the threshold question of patentability. Hilborn v. Dann, 546 F.2d 401,
403, 192 USPQ 132, 134 (CCPA 1976), Qadri v. Chu, 18 USPQ2d 1254, 1256 (Bd. Pat.
App. & Int. 1990); and M v. V., 6 USPQ2d 1039, 1041 (Bd. Pat. App. & Int. 1987).
The APJ indicated that the parties would be entitled to raise at final hearing: (1)4
whether the APJ abused her discretion in not deciding Wallach motions 1b, 1c [sic: 1d]
and 2-5 and LeMaire motions 1-11 and (2) whether LeMaire has effectively removed the
Engelmann et al. reference by demonstrating that the earlier filed German applications
satisfy 35 U.S.C. § 112, first paragraph, description requirement. (Paper No. 86)
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