While we have not considered the arguments presented in Glaxo preliminary motions 6-9
(infra at 51 and supra at 27) we note Glaxo’s position that claim 2 of its ‘405 patent (directed to
the treatment of non-Hodgkins lymphoma) would have been unobvious in view of Count 1 based
on the secondary consideration of commercial success. In particular, Glaxo argues that the
commercial success of Rituxan16 establishes that ‘405 claim 2 would have been unobvious
(Paper 52 at 15). Evidence of commercial success must be commensurate with the scope of the
claim it is offered to support. In re Tiffin, 448 F.2d 791, 792, 171 USPQ 294, 294 (CCPA 1971).
We determine that Glaxo has not adequately shown commercial success for the subject matter of
‘405 claim 2 for at least the reason that ‘405 claim 2 is not limited to Rituxan.
Thus, we will designate all the Glaxo claims as corresponding to Count 2.
Cabilly’s priority benefit (Cabilly preliminary motions 12 and 13)
Cabilly was accorded priority benefit of the ‘419 and ‘457 applications as to the subject
matter of Count 1 in the Notice Declaring Interference (FF 13). In its preliminary motion 5,
Glaxo seeks to deny Cabilly priority benefit of the ‘419 and ‘457 applications for Count 2.
In its preliminary motions 12 and 13, Cabilly has moved to deny Cabilly priority benefit
of its ‘419 and ‘457 application for Count 2. Thus Glaxo preliminary motion 5 is seeking the
same relief as Glaxo preliminary motions 12 and 13.
The types of preliminary motions that may be filed in an interference are set forth at
37 CFR § 1.633. 37 CFR § 1.633(g) allows a moving party to attack priority benefit accorded to
another party in the Notice Declaring Interference. However, 37 CFR § 1.633 does not allow for
16 Rituxan is said to be sold by Genentech under the trade name of Rituuximab and
is said to recognize CD 20 antigen and treat non-Hodgkins lymphoma (Paper 52 at 15-16).
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