Ex Parte PAGE - Page 3




               "antigen binding capability and effector functionality" (‘403 at 5:8-61).  Some, but not all, of the                    
               Cabilly claims expressly state that the claimed antibodies have been glycosylated by CHO cells.                         
               The Cabilly disclosure recognizes that antibodies expressed in mammalian cells would be                                 
               expected to be glycosylated (Exh. 2103 at 4:18-21 and 45:26-28).                                                        
                                                  Brief summary of the decision                                                        
                       We grant that portion of Glaxo preliminary motion 5 seeking to substitute proposed                              
               Count 2 and deny or dismiss the remaining portion of Glaxo preliminary motion 5.  We deny or                            
               dismiss all the remaining Glaxo preliminary and other motions.  For reasons that we shall                               
               explain below, we do not find it necessary to decide any Cabilly preliminary or other motion.                           
               Thus, we dismiss each Cabilly preliminary and other motion.                                                             
                       Because Glaxo did not allege a conception date earlier than the filing date of a Cabilly                        
               priority benefit application, we enter final judgment against Glaxo.                                                    
                       II.     FINDINGS OF FACT                                                                                        
                       The record supports the following findings of facts and any findings of facts set forth in                      
               the discussion portion of this decision by at least a preponderance of the evidence.                                    
                                                          The junior party                                                             
                       1.      Glaxo is involved in the interference on the basis of the following three patents:                      
                               a.      5,545,403 ("'403"), which issued on 13 August 1996 from application                             
               08/155,864, filed 23 November 1993.                                                                                     
                               b.      5,545,404 ("404"), which issued on 13 August 1996 from application                              
               08/335,400, filed 3 November 1994.                                                                                      



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