Patent Interference No. 103,892 Page 8
II.A.1., and Grundmann brief, p. 2, at II.A.3.). A party may establish an earlier date of
invention based on proof of conception and reduction to practice of either factor XIIIa or
XIIIb. To that end, the parties have jointly moved (Joint Motion No. 1 pursuant to 37
CFR § 1.633(c)(1), paper no. 22) to substitute Proposed Count A9 for present Count 1,
thereby redefining the interfering subject matter to emphasize that the isolated DNA
generically encodes both human factor XIIIa and human factor XIIIb. The motion is
DENIED.
The motion was filed pursuant to 37 CFR § 1.633(f), but it does not satisfy the
totality of requirements set forth in 37 CFR § 1.637(c). The sole reason for replacing
Count 1 with Proposed Count A is to clarify that human factor XIII exists as factors XIIIa
and XIIIb. It is well-settled that, absent ambiguity, a count in an interference is to be
given the broadest reasonable interpretation that the language of the count permits
without resort to either party's disclosure. DeGeorge v. Bernier, 768 F.2d 1318, 1322,
226 USPQ 758, 761 (Fed. Cir. 1985). The parties agree that there is no ambiguity
here.10 The evidence supports the finding (see the background sections of both parties’
interfering applications), that DNA encoding factor XIIIa and factor XIIIb are both DNA
encoding human factor XIII (i.e., Count 1). Thus, the broadest reasonable interpretation
9 Proposed Count A: An isolated DNA encoding human factor XIIIa or XIIIb.
10 “The parties agree that human factor XIII includes subunits a and b … … Grundmann et al’s
Preliminary Motion No. 1 Under 37 CFR 1.633(f), the Response thereto by Davie et al., and the Reply, if
any, to be filed by Grundmann et al. refer to the present count as encompassing both subunits a and b.”
Joint Motion No. 1 to Substitute a Count Under 37 CFR 1.633(c)(1), p. 2.
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