Appeal No. 1997-2374
Application No. 08/064,352
UR1, signed by co-inventor Evans and non-inventors Chesebro and Galli on March
7, 1988, states that NIAID "will furnish the following research materials: Tissue culture
supernatant of monoclonal antibody 83A25' (10 mls)" to Townsend, who signed the
agreement on March 17, 1988.
VR1, signed, but not dated, by co-inventor Evans and non-inventors Chesebro and
Galli, states that NIAID "will furnish the following research materials: Anti-murine
retroviral gp70 monoclonal antibody tissue culture supernat. Name - 83A25'" to
Hoffman who signed the agreement on April 14, 1988.
UR2, signed by co-inventor Evans and non-inventors Chesebro and Galli on May
10, 1988, states that NIAID "will furnish the following research materials: "Monoclonal
antibodies to murine leukemia virus envelope proteins” to Hays who signed the
agreement on May 25, 1988.
There is no indication in any of these documents that the materials were used by
Townsend, Hoffman and/or Hays. Examiner argues that “the claimed material was
distributed [to Townsend, Hoffman and/or Hays] more than one year before the
application was filed” (Examiner’s Answer, p. 6) but there is no evidence of such a
distribution. Nowhere in these agreements does it state that the indicated research
materials were in fact transferred to and used by Townsend, Hoffman and/or Hays and
that the transfer and subsequent use occurred more that one year prior to the filing date
of the application. Examiner appears to have considered the dates these agreements
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