hydrochloride is present. Additionally, we note that the Peterson reference (SX 2051) cited by
Shiokawa specifically teaches a reaction of a 1,3,5-oxadiazine compound and a hydrochloride salt of a
methyl amine. (SX 2051, p. 247). As it is possible that a 1,3,5-oxadiazine would react with the
methoxyamine hydrochloride of example 5,
we cannot construe the identified testimony of Dr. Ziegler as affirmatively conceding that the 1,3,5-
oxadiazine was a possible end-product of example 5.
3. In re Driscoll is Readily Distinguish From the Facts of this Interference
According to Shiokawa, the facts of this case are close to those in In re Driscoll. According
to Shiokawa, the heteroatom Z is selected from the group consisting of O, S and N, making all three of
the symmetrical “core” heterocycles clearly discernible in the general formula of the ‘146 patent.
(Paper No. 81, p. 11).
The court in Driscoll was presented a generalized formula where one specific moiety, R,
constituted the essence of the inventive subject matter. Specifically, the application in question stated
that: “Particularly effective [herbicides] are [thiadiazole ureas] which contain an organic substituent in
the 5-position of the thiadiazole portion.” In re Driscoll, 562 F.2d at 1249,
195 USPQ at 437. The court determined that the focus of Driscoll’s application was unquestionably
on the substituents at the 5-position of the thiadiazole moiety, and not on the other substituents present
in Driscoll’s genus of herbicidal compounds.
Unlike the facts of In re Driscoll, ‘146 patent does not recite a special interest in a particular
variable for its generalized formula. Moreover, the ‘146 patent does not identify the Z position or E
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