Interference 102,728
value because it had no other ‘substantial use’ than to obtain the claimed construct.[4]”
Singh v. Brake, 222 F.3d 1362, 1370, 55 USPQ2d 1673, 1679 (Fed. Cir. 2000).
7. Accordingly, the Federal Circuit vacated and remanded (i) “to reconsider
Singh’s ‘substantial use’ argument,” and (ii) “to reevaluate the totality of the
corroborative evidence.” Singh v. Brake, 1362 F.3d at 1370, 55 USPQ2d at 1679.
8. The Federal Circuit also remanded “for a determination of those issues
that were properly raised during the earlier proceedings.” Singh v. Brake, 222 F.3d at
1371, 55 USPQ2d at 1679.
9. The mandate from the Federal Circuit was received by the Board on
September 14, 2000. Paper No. 170.
10. On September 19, 2000, an order was entered inviting the parties to file
briefs addressing the issue of (i) whether Brake sustained its burden of proof in its
preliminary motion to be accorded the benefit of its Application 06/457,325, filed
January 12, 1983; and (ii) Singh’s priority. Paper No. 171.
II. Background
Alpha (") factor is a protein twelve to thirteen amino acids in length which is
secreted by the yeast, Saccharomyces cerevisiae. Singh, Paper No. 28, Exhibit 15
to Singh, the 24-mer was employed to construct an invention within the scope of the
count. Singh Brief, Paper No. 180, pp. 8-9.
4 We direct attention to the description of the count, infra. Claim 1 of Brake is the
same as Count 1, the sole count in the interference.
3
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