B. Glaxo preliminary motions
Summary of the Glaxo preliminary motions
Glaxo’s preliminary motion 5 seeks to substitute proposed Count 2. Proposed Count 2
eliminates that portion of Count 1 that does not expressly require the treatment of a human or
glycosylation by CHO cells (FFs 28, 29).
A central issue in this interference is whether Glaxo has shown that Cabilly fails to meet
the written description requirement of 35 USC § 112, ¶ 1:
(a) for the subject matter of Cabilly’s involved claims in the ‘611 application (argued
in Glaxo preliminary motion 3), and
(b) for an embodiment within the scope of proposed Count 2 in the ‘419 application
(argued in Glaxo preliminary motion 5).
For much the same reason Glaxo argues that the Cabilly applications do not provide
adequate written description, Glaxo moves for judgment that there is no interference-in-fact
(Paper 57).
Glaxo moves for judgment that the claims of Cabilly’s ‘611 application are unpatentable
for lack of enablement under 35 USC § 112, ¶1 (Paper 56).
We need not and have not decided the remaining Glaxo preliminary motions for reasons
further explained below.
Glaxo preliminary motion 5
In its preliminary motion 5, Glaxo moves to substitute proposed Count 2 for Count 1.
Proposed Count 2 is the same as Count 1 except proposed Count 2 excludes Cabilly claim 56.
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