Cabilly’s second motion to suppress evidence
In its second motion to suppress evidence (Paper 208), Cabilly moves to suppress the
Decision of the EPO in case number T1211/97-3.3.4. To the extent we relied upon the Decision
of the EPO in case number T1211/97-3.3.4, we did not find the Decision persuasive in
supporting Glaxo’s position. Therefore, the suppression of the Decision would not change our
decision and therefore we need not, and have not, decided Cabilly’s second motion to suppress.
Cabilly’s second motion to suppress is DISMISSED as moot.
F. Redeclaration
In the order below the interference is redeclared only to the extent that Count 2 is
substituted for Count 1. Since Glaxo has not alleged a conception date prior to the filing date of
Cabilly’s ‘419 application filing date, we need not and have not decided whether Cabilly is
entitled to the priority benefit of its ‘457 application or whether Glaxo is entitled to the priority
benefit of its 08/046,893, 08/943,146, or 07/777,730 applications for Count 2.
In its preliminary motion 5, Glaxo did not sufficiently explain why the claims that are
designated as corresponding to Count 1 should not also be designated as corresponding to Count
2.24 Nonetheless, when we evaluate the Glaxo claims, we determine that all the Glaxo claims are
appropriately designated as corresponding to Count 2. Thus, we do not alter the claim
designations found in the Notice Declaring Interference (Paper 1 at 49).
24 We again note that Glaxo states that certain claims of its involved patents should
not correspond to Count 2 “for the reasons set forth in GWI Preliminary Motions 6-9. The
arguments from Glaxo preliminary motions 6-9 may not be incorporated into Glaxo preliminary
motion 5 by reference to preliminary motions 6-9. Moreover, Glaxo preliminary motions 6-9 are
dismissed as moot. Thus, we have not considered Glaxo’s arguments in Glaxo preliminary
motions 6-9.
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