"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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