of the art as of the filing date of the ‘611 application. Thus, Glaxo has not met its burden by
showing that the ‘611 claims were not enabled as of the filing date of the ‘611 application.
At one point in Glaxo preliminary motion 10, Glaxo argues that a 1988 article disclosing
CHO cell expressed antibodies did not disclose in vivo therapeutic activity of the antibodies
(Paper 56 at 19). To the extent Glaxo is arguing that the ‘611 claimed subject matter was not
enabled in 1988, such argument still does not address whether the ‘611 claimed subject matter
was enabled as of the filing date of the ‘611 application.
Cabilly’s entitlement to benefit under 35 USC § 120 for the 1983 filing date of the ‘457
or the 1988 filing date of the ‘419 application might be relevant if Glaxo had moved under
37 CFR 1.633(a) for judgment that the ‘611 claims are unpatentable over prior art dated after the
‘457 or ‘419 filing date. However, Glaxo did not so move.
Glaxo preliminary motion 10 seems to be directed more at attacking the priority benefit
accorded to Cabilly for the 1983 filing date of the ‘457 application. Glaxo filed preliminary
motion 1 attacking the priority benefit accorded to Cabilly for the ‘457 application and that
motion is dismissed as moot.
Glaxo’s arguments that Cabilly should not be accorded priority benefit of its ‘419
application are based on Glaxo’s position that the ‘419 application lacks written description for
an embodiment within the scope of Count 2. Glaxo does not argue that the ‘419 application
lacks enablement for an embodiment within the scope of proposed Count 2 (FF 41).
Glaxo does not show that the ‘611 claims were not enabled as of the 12 August 1997
filing date of the ‘611 application. Glaxo preliminary motion 10 is DENIED. Since Glaxo did
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