Interference No. 103,625
application cannot provide the requisite descriptive support for the now claimed eight
sequences, it may be possible that the eight sequences of the ‘089 application do, but
then again it is also possible that they do not. It is well established that inherency may not
be established by probabilities or possibilities. In re Oelrich, 666 F.2d 578, 581, 212
USPQ 323, 326 (CCPA 1981). Hence on this record, we find that LeMaire have not
sustained their burden of establishing that the ‘072 and ‘089 applications, as originally
filed, reasonably convey to the skilled artisan that the inventor had possession of the
concept at that time of the later claimed subject matter.
For the foregoing reasons, we hold that LeMaire’s claims 1-3 are
unpatentable and that LeMaire has failed to effectively remove Engelmann as prior art.
JUDGMENT
It is adjudged that, on the present record, David Wallach, Hartmut
Engelmann, Dan Aderka, Daniela Novick and Menachem Rubinstein, the senior party, are
entitled to a patent containing claim 67 and Hans-Georg LeMaire, Heinz Hillen, Achim
Moeller, Lothar Daum, Thomas Doerper, and Thomas Subkowski, the junior party, are not
entitled to their patent containing claims 1-3. Wallach claims 33, 34,36-41, 44-46, 62, and
65, 66 and 68 have been held to be nonallowable by the primary
examiner. Accordingly, we take no position as to these claims, Grove v. Johnson, 22
USPQ2d 1044 (Bd. Pat. App. & Int. 1991).
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