Patent Interference No. 103,548
190, 192 (CCPA 1958). We note that Lagrange does argue that the alleged unexpected
uptake results "inherently flow from what is disclosed in Lagrange '637" and therefore
should not be disregarded, citing In re Slocombe, 510 F.2d 1398, 1402; 184 USPQ 740,
743 (CCPA 1975) and In re Davies, 475 F.2d 667, 177 USPQ 381 (CCPA 1973). LRB
16-17. But the lack of disclosure raises significant questions as to whether Lagrange
can now rely on the uptake results set forth in the Cotteret Declarations. Nevertheless,
this is not a matter we need to resolve. As we have already discussed, based on our
evaluation, the declaration evidence does not establish an unexpectedly improved
uptake for the claimed C2-C4 indolines. The question of whether Lagrange can even rely
on such data, in view of the lack of disclosure of that property, only adds to the
weaknesses in the declaration evidence.
For the foregoing reasons, Lagrange has not met its burden of overcoming the
prima facie case of obviousness.
Accordingly, Lagrange Preliminary Motions 2 and 3 are DENIED.
Lagrange has failed to meet its burden of establishing that the invention of
Lagrange patent claim 29 and Lagrange reissue claims 1-21, 24-26 and 29 define a
separate patentable invention with respect to any of Lagrange patent claims 1-21, 24-28
and Konrad claims 1-14. Accordingly, the designation of Lagrange patent claim 29 and
Lagrange reissue claims 1-21, 24-26 and 29 as corresponding to the counts is
maintained. Consequently, given our determination that Konrad is entitled to priority of
the subject matter of Counts 1-3, Lagrange is not entitled to a patent containing claim
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