Interference No. 103,625
subject matter in the ‘072 or ‘089 application, when given its necessary and only
reasonable construction, inherently satisfies the limitations of the LeMaire claims.
While LeMaire consistently argue that the source is the same, urine from
patients having a high fever, LeMaire do not state that the source is urine from the same
patients in each application. In our view, it would appear that LeMaire’s unsupported
argument leads to two interpretations. The first interpretation, which would appear at first
blush to be more helpful to LeMaire, is that the source of proteins for the ‘072, the 089 and
U.S. patent is the same singular pool of patients. A second interpretation, which is not
helpful to LeMaire, is that while the protocol for obtention of the protein is the same, the
source of the urine is from patients of febrile fever but not from the same singular pool of
patients but rather from three differing pools. However, both interpretations fail. As
recognized by LeMaire,
N terminal sequence analysis indicates the inhomogeneity of the amino acid sequences
found (See the ‘072 application at P000083, the ‘089 application at P000105 and
P000110, and the involved patent at column 5, lines 8-10). Therefore, the N terminus
sequences of the proteins are unpredictable. In addition, the identified N terminus
sequences of the ‘072 and ‘089 applications, see Table 1 and 2, are differing and yet
o
presumably from the same source, urine from patients with a fever ($38 C) Note
specifically Seq 2 positions -3 and -2 of ‘072 application. Lastly, the prior art recognizes
that more than one TNF" binding protein (TBP-I and TBP-II) is present in the urine of
patients with fever. (Wallach exhibits 7-9). While the three sequences of the ‘072
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