Interference No. 103,625
& Int. 1992). Thus, on this record, we find that LeMaire have failed to effectively remove
Engelmann as prior art and we thus hold that LeMaire claims 1-3 are unpatentable under
35 U.S.C. § 102 or §103 over Engelmann.
Turning first to the sequences disclosed in the ‘072 application and
comparing them with the sequences in LeMaire claims 1-3 (see Table 1 in the Appendix),
we find at least three significant differences between the proteins containing N-terminus
amino acid sequences disclosed in the ‘072 application and those now claimed by
LeMaire: (1) the ‘072 application discloses only three sequences whereas the involved
LeMaire patent claims eight sequences (2) in those three disclosed sequences in the ‘072
application positions: -6, -5, -4, -1, 1(seq. 2 and 3), 3, 5, 6, 8, 11, 12 and 16 are
unidentified and could be any amino acid and (3) positions -3 and -2 are identified and do
not match.
LeMaire, in their ‘072 application, identify a number of probabilities for
various positions. Even with these probabilities, we again find significant differences, to
wit, (1) the ‘072 application discloses only three sequences whereas the involved LeMaire
patent claims eight sequences; (2) positions -6, -4, -1, 1, 12 and 16 are unidentified and
could be any amino acid; (3) positions -5, -3, 2, and 8 are identified
and do not match; and (4) positions 3 and 6 could match with the appropriate selected
probability.
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