Therefore, we deny Glaxo preliminary motion 3 and that portion of Glaxo preliminary motion 5
seeking to deny Cabilly priority benefit of its ‘419 application for Count 2.
Even when we consider the Glaxo arguments in view of the testimony of Dr. Youle and
Dr. Vitetta, we still determine that Glaxo has failed to set forth a prima facie case and deny
Glaxo preliminary motion 3 and that portion of preliminary motion 5 attacking Cabilly’s priority
benefit of the ‘419 application for proposed Count 2. We address the particular arguments set
forth in Glaxo preliminary motions 3 and 5 below in view of our understanding of the testimony
of Dr. Youle and Dr. Vitetta.
1. Glycosylation
Glaxo argues that the involved applications do not describe antibodies that are
glycosylated and, in particular, antibodies that are glycosylated by CHO cells (Paper 49 at 21).
Glaxo argues that the Cabilly applications do not describe antibodies glycosylated by CHO cells
since “[i]t is possible that an antibody expressed by a CHO cell might not be glycosylated.”
Glaxo points to the declaration of Dr. Youle (Exh. 2012) in support of its position. According to
Glaxo, “Dr. Youle suggests several different scenarios whereby antibodies produced by CHO
cells might not be glycosylated” (Paper 49 at 21-22).
The only specific mention of CHO cells found in the Cabilly applications is as follows
(FF 48):
Examples of such useful host cells [for expressing antibodies] are VERO
and HeLa cells, Chinese hamster ovary (CHO) cell lines, and WI38, BHK, COS-7
and MDCK cell lines.
Glaxo argues that “[t]he present situation is strikingly similar to that present in In re
Ruschig, 379 F.2d 990, 154 USPQ 118 (CCPA 1967)”. Glaxo also points to Fujikawa v.
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