Patent Interference No. 103,548
R3
R4O
R2 (I)
R5O N
R1
where R1, R2, R3, R4, and R5 independently of one another represent
hydrogen or C1-4 alkyl groups, or R4 and R5 together with the oxygen atoms to
which they are attached may represent an alkylenedioxy group containing 1
to 4 carbon atoms , including:
· alkyl-substituted indolines corresponding to formula I where one of the groups
R1, R2, and R3 is a C1-4 alkyl group and the other groups (i.e., R1, R2, R3, R4,
and R5) are hydrogen ( claim 6).
Accordingly:
· Lagrange claims N-(C2-C4)alkyl-5,6-dihydroxyindolines;
· Konrad claims a genus of C1-4 alkyl-substituted indolines that covers at least 59,049
compounds;26 and,
· Konrad claims a genus of alkyl substituted indolines that includes Lagrange's
claimed subgenus.
Lagrange is asserting that the indolines of Lagrange's claim 29 are not
anticipated by Konrad claim 4. Consistent with its burden of proof, Lagrange must
demonstrate that there is a lack of identity between the C2-C4 alkyl N-substituted
indolines Lagrange claims and the inclusive invention described by Konrad claim 4 as
26 Lagrange agrees that "Konrad does generically describe 5,6-dihydroxindolines which include
compounds where R1 can be C1-4 alkyl." (LB 16). The "59,049" number was calculated in the Decision on
Motions (see p. 10; "at least 59,049") and has not been challenged (see LB 13: fact 13. "...at least about
59,000.").
17
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