Interference No. 103,625
claimed by LeMaire. Suffice it to say that the ‘072 application disclosure of three proteins
having incomplete and misidentified N terminus amino acid sequences is not and cannot
be suggestive that LeMaire had possession of the eight proteins with the N terminus
amino acid sequences now claimed.
This record establishes that none of the sequences of the ‘072 and ‘089
application match the N terminal amino acid sequences now claimed by LeMaire.
However, this does not end the inquiry. Where an earlier filed application does not contain
language contained in the claims of a later application, the question is whether the
language in the earlier filed application is the legal equivalent of claim language in the
sense that the “necessary and only reasonable” construction to be given the disclosure in
the earlier filed application by one skilled in the art is the same as the construction which
such person would give the language in the claims of the later application. Wagoner v.
Barger, 463 F.2d 1377, 1379, 175 USPQ 85, 86 (CCPA 1972).
In order to establish that the earlier filed applications satisfy 35 U.S.C. § 112,
description requirement for the now claimed subject matter, LeMaire rely on the doctrine of
inherency.
LeMaire argue that the ‘072 and ‘089 application fully support the LeMaire
patent claims because the “positive limitation which is the N-terminal amino acid sequence
designated in the count [sic: claim] is an inherent characteristic of the purified and isolated
TNF" binding protein in ‘072 and ‘089. LeMaire support this argument by reasoning that
the proteins as described in the earlier filed German applications are the same as those of
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