(Paper 49 at 13-14). However, Glaxo has not provided any reasoning and has indirected us to no
authority supporting the proposition that a product that is the subject of ongoing experiments
cannot be adequately described under 35 USC § 112, ¶ 1.
Moreover, other types of therapeutic treatment are described by Cabilly and are not
described as “experimental”. For example, the Cabilly applications describe the injection of
antibodies targeted for diseased cells and carrying a suitable drug (FF 54).
Glaxo argues that Cabilly “does not disclose any pharmaceutical formulation or dosage
regimen” (Paper 49 at 21). Glaxo has not explained why the description of a particular
formulation or dosage regimen is necessary for written description since no formulation or
dosage regimen is required by the Cabilly claims.
Summary:
Glaxo has the burden of showing that the Cabilly applications do not meet the written
description requirement. 37 CFR § 1.637(a). We determine that Glaxo has not met its burden.
While the Cabilly applications do not provide a clear and detailed written description as
they might have, to meet the written description requirement of 35 USC § 112, ¶ 1, the
applications need only convey with reasonable clarity to those skilled in the art that Cabilly was
in possession of the invention. Vas - Cath Inc. v. Mahurkar , 935 F.2d at 1563, 19 USPQ2d at
1117.
Glaxo preliminary motion 3 is DENIED. The portion of Glaxo preliminary motion 5
seeking to deny Cabilly priority benefit of its ‘419 application for the subject matter of Count 2,
is DENIED. Since Glaxo did not set forth a prima facie case, we need not and have not
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