Glaxo argues that “there is no statement that Cabilly intended [the treatment of tumors
with anti-CEA+[ 22] antibody] as part of his invention” (Paper 49 at 12, bracketed material added).
Glaxo’s argument is relevant only to its preliminary motion 3 since Count 2 does not require the
treatment of a human tumor having using anti-CEA antibody.
Cabilly claims 54 and 57-60, which are not part of Count 2, include the treatment of a
human tumor using an anti-CEA antibody. Glaxo does not adequately explain why Cabilly’s
description of anti-CEA antibodies and the use of anti-CEA antibodies for treating tumors (Exh.
2103 at Ex. E.1-E.10, Ex. E.4, and Ex.E.5 at 49-52) in combination with Cabilly’s description of
therapeutic treatment using antibodies is insufficient to convey that Cabilly was in possession of
a method of therapeutic treatment using anti-CEA antibodies. For example, Cabilly teaches that
anti-CEA antibodies “have the potential for use in treatment of those human tumors which
appear to support CEA at their surfaces” (Exh. 2102 at Ex. E.1) . Cabilly also provides an
example of a method of making a chimeric antibody comprising a human constant region and a
murine anti-CEA variable region (Exh. 2102 at Ex. E.4). While the chimeric antibody
exemplified is expressed in E.coli, Cabilly discloses that the antibodies of the invention may be
expressed in CHO cells (Exh. 2102 at 18:8-10) When we consider the ‘611 application as a
whole, we determine that Glaxo has not shown that the ’611 application fails to reasonably
convey to one skilled in the art that Cabilly was in possession of therapeutic treatment of humans
using anti-CEA antibodies expressed by CHO cells.
Glaxo points out that the Cabilly applications describe the use of antibodies to treat
human diseases and disorders by direct injection as “experimental” and as having “potential”
22 We understand CEA to be carcinoembryonic antigen.
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