memorandum gives the examiner’s reasoning for proposing that all the Glaxo claims be
designated as corresponding to Count 1. The examiner’s reasoning would also seem to apply in
explaining why all Glaxo’s claims should correspond to Count 2.
Count 2 is a subgenus of Count 1. The portion of Count 1 that is not found in Count 2 is
that portion of Count 1 relating to the treatment of subjects and the use of antibodies that are not
glycosylated by the CHO cells expressing them. None of the Glaxo claims relate to the portion
of Count 1 that is not found in Count 2. Thus, under the present circumstances, any Glaxo claim
that is anticipated by or would have been obvious in view of Count 1 is also anticipated by or
would have been obvious in view of Count 2. Thus, there would seem to be no reason to modify
the claims designations from those found in the Notice Declaring Interference (Paper 1 at 49).
Neither party disputes that claim 1 of the ‘403 patent, claims 1 and 2 of the ‘404 patent
and claims 1, 6, 8, and 9 of the ‘405 should be designated as corresponding to Count 2
(Paper 51 at 4). Therefore, we will designate these claims as corresponding to Count 2.
Glaxo does dispute that the following claims should be designated as corresponding to
Count 2 (Paper 51 at 4). We will refer to these claims as “the disputed claims”:
‘403 claims 2-7
‘404 claims 3-7
‘405 claims 2-5 and 7
The disputed claims are summarized below:
‘403 claims 3, 5, and 7, ‘404 claim 6 and ‘405 claim 5 all relate to methods of treatment
using antibodies expressed and glycosylated by CHO cells where the expressed antibodies
specifically bind to CDw52 antigen. ‘405 claim 5 specifies that the cancer being treated is
-26-
Page: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Next
Last modified: November 3, 2007