a distinct preliminary motion attacking priority benefit where none has been granted in the
Notice Declaring Interference, e.g., for a proposed count. Instead, 37 CFR § 1.637(c)(1)(vii)
directs a party seeking to substitute a count to explain why an opposing party should not be
accorded the same priority benefit it was accorded in the Notice Declaring Interference for the
proposed count. Glaxo preliminary motions 12 and 13 are not provided for under 37 CFR
§ 1.633 and are unnecessary since Glaxo explains why it believes that Cabilly should not be
accorded priority benefit of the ‘419 and ‘457 applications in its preliminary motion 5. It is
inappropriate for Glaxo to present further arguments in its preliminary motions 12 and 13 in an
attempt to avoid the page number limitations applicable to Glaxo preliminary motion 5. We
have not considered arguments presented in Glaxo preliminary motions 12 and 13 only to the
extent those arguments are also presented in Glaxo preliminary motion 5. Glaxo preliminary
motion 12 and 13 are DISMISSED as improper.
Cabilly’s benefit for Count 2 and Glaxo preliminary motion 3
Below we address together Cabilly preliminary motion 3 and Glaxo’s arguments why
Cabilly should not be accorded priority benefit of its ‘419 application for purposes of Count 2.
Since we determine, for reasons stated below, that Glaxo has not shown that Cabilly
should not be accorded priority benefit for its ‘419 application as to Count 2, we need not and
have not decided whether Cabilly is entitled to priority benefit of its ‘457 application for the
subject matter of Count 2. Thus that portion of preliminary motion 5 seeking to deny Cabilly
priority benefit of the ‘457 application is DISMISSED as moot.
In particular, we note that Glaxo’s preliminary statement does not allege a date sufficient
to overcome the ‘419 filing date. (FFs 14, 15). While in some situations it may be appropriate
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