Interference 104,002
polynucleotide or amino acid sequence of the MN390 clone. Estee Lauder v, L’Oreal,
S.A., 129 F.3d at 592, 44 USPQ2d at 1613.
We point out that Godiska states that
Chemokines, also known as “intercines” and SIS cytokines,” comprise a
family of more than thirty small, secreted proteins (commonly 70-100 amino
acids in length and 8-10 kiloDaltons in size ...) that attract and activate
leukocytes (white blood cells) and thereby aid in the stimulation and regulation of
the immune system. The name “chemokine” is derived from chemotactic
cytokine, and refers to the ability of these proteins to stimulate chemotaxis
(movement) of leukocytes. Indeed, chemokines as a group may comprise the
main attractants for inflammatory cells into pathological tissues. The array of
activities of any individual chemokine (e.g., the types of white blood cells that the
chemokine attracts) generally is not identical to the array of activities of another
chemokine. A chemokine may have attractant properties for more than one cell
type, and may have other activities in addition to its chemoattractant activities.
Conversely, a particular cell type may be influenced by more than one
chemokine [emphasis added]. GB, pp. 47-48, Material Fact 106.
Thus, Godiska acknowledges that identifying a novel polypeptide as being
structurally similar to other members of the chemokine family of compounds does not
reveal its specific activity or utility. Estee Lauder v, L’Oreal, S.A., 129 F.3d at 592,
44 USPQ2d at 1613. That is, it appears that chemokines may attract inflammatory
cells, but in any event the structure (amino acid composition) alone does not indicate
which type of white blood cell it attracts. Nor does the amino acid composition of the
chemokine reveal anything about how it “stimulates and regulates” the immune system.
In our view, Godiska’s first recognition of a practical utility for the
polynucleotide/amino acid sequence of the MN390 clone occurred on March 3, 1995,
when Dr. Godiska received the report from Ms. Watson as to the differential in situ
hybridization results. GX 1013, p. 90; GX 1022, pp. 1-4; GR pp. 48-50, paras. 14-19.
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