Appeal No. 1997-3047
Application 08/480,152
Stanley, and the decisions in these cases were consistent with
each other.
The facts in Lilly, however, were quite different from
the facts in Stanley and Thomson-Houston. In Lilly, claim 1
of the ‘895 patent recited treating depression in humans by
administering a compound within a genus which included
fluoxetine hydrochloride, and claim 7 of the ‘549 patent
recited administering fluoxetine hydrochloride to an animal to
block serotonin uptake in the animal’s brain neurons. See
Lilly, 222 F.3d at 978-79, 55 USPQ2d at 1612-13. The
applications which led to the ‘895 and ‘549 patents were
filed, respectively, on September 17, 1975 and March 31, 1986,
and issued, respectively, on April 19, 1977 and December 2,
1986. According to the court, both claimed benefit under 35
U.S.C. § 120 of the filing date of an application filed in
1974. See Lilly, 222 F.3d at 978-79, 55 USPQ2d at 1612-13.
The court stated that “[t]hroughout the term of the ‘895
patent, by virtue of claim 1’s broad coverage, Lilly possessed
the right to exclude other parties from administering any of
the thousands of claimed compounds, including but not limited
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