Interference No. 104,733
Page No. 30
B. UW Claim 3 is Patentably Distinct from Lilly's Corresponding
Claims
UW claim 3 is directed to a plasmid or transfer vector that comprises the cDNA
sequence depicted in UW Figure 3, from base pair 127 to base pair 1383. Lilly claim I
corresponds to Count 1 and requires a constructed DNA compound that encodes a
polypeptide with human protein C activity wherein the coding strand comprises several
distinct cDNA species. Lilly claims 2-75, 77-80 and 84-88 all depend from Lilly claim 1
or require a DNA compound of Lilly claim 1. Of the remaining Lilly corresponding
claims, Lilly claim 76 is directed towards several "intermediate" plasmids that lack the
protein C cDNA, while Lilly claims 81 and 82 relate to recombinant DNA sequences that
comprise the coding sequence for the active light chain of human protein C. Thus, as it
is readily apparent that Lilly's intermediate plasmids are patentably distinct from UW
claim 3, the proper comparison for patentable distinctness is between the cDNA
species of UW claim 3 and the cDNA species recited in Lilly claim 1 and Lilly claims 81
and 82.9
The sequence claimed in UW claim 3 is a cDNA sequence having at least 1257
base pairs, i.e.; 419 codons (three base pairs to a codon), that encode a protein of 419
amino acids. For such a sequence, the odds of randomly changing a single codon are
1 in 419, changing any two codons at random is 1 in 175,142 (419 x 418), changing any
three codons at random is 7,303,214 (419 x 418 x 417), etcetera. (See generally,
'While Lilly's corresponding claims encompass several distinct species of cDNA,
for reasons of convenience we refer to Lilly claims as "species" claims as opposed to
"genus" or "subgenus" claims.
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