Interference Nos. 103,882, 103,933, and 104,228 Consolidated Judgment
Gregory v. Tsui et al. Page 3
5. In the 933 interference, Gregory was also accorded the benefit of its 07/589,295
(295) application, filed 27 September 1990 (abandoned), which is a continuation-in-part of the
307 application.
6. Gregory has moved to deny Tsui the benefit of the 609 application.2 Tsui has
moved, contingent on the grant of Gregory's motion, to attack Gregory's accorded benefit.
7. The sole count in the 103,882 (882) interference is (882 Paper No. 1 at 3):
Nucleic Acid encoding cystic fibrosis transmembrane conductance
regulator (CFTR).
8. The sole count in the 103,933 (933) interference is (933 Paper No. 1 at 2):
A recombinant vector for a target cell, the vector comprising:
a) a DNA regulatory element, and
b) a DNA sequence which encodes the cystic fibrosis transmembrane
regulator protein, said DNA sequence operably linked to the DNA
regulatory element and capable when so linked of expression in the target
cell in vitro or in vivo.
9. The sole count in the 104,228 (228) interference is (228 Paper No. 1 at 4):
Isolated and purified cystic fibrosis transmembrane conductance regulator
(CFTR) protein.
2 Gregory also attacked Tsui's accorded benefit to two earlier parent applications of the 609 application, but if
Tsui is entitled to the benefit of the 609 application, then Tsui would still be senior party, which is sufficient for Gregory
to lose. Conversely, if Tsui is not entitled to the benefit of its 609 application, then the earlier Tsui parent applications
could not serve as constructive reductions in practice due to the break in continuity and thus Tsui would not be entitled to
their benefit. Cf. In re Costello, 717 F.2d 1346, 1350, 219 USPQ 389, 391 (Fed. Cir. 1983) (abandonment resulting in a
break in continuity strips earlier application of status as constructive reduction to practice). At the hearing, both counsel
agreed that the focus was properly on Tsui's 609 application.
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