Interference 104,066
Before METZ, ELLIS and LORIN, Administrative Patent Judges.
ELLIS, Administrative Patent Judge.
FINAL DECISION PURSUANT TO 37 C.F.R. § 1.658(a)
This interference was originally declared on May 11, 1998, and it involves a
patent of Lee et al. (Lee), U.S. Patent No. 5,532,220 (the ‘220 patent), assigned to the
Regents of the University of California and licensed to Canji, Inc., a wholly-owned
subsidiary of Schering-Plough Corporation; and an application of Vogelstein et al.
(Vogelstein), Application No. 08/035,366 (the ‘366 Application) assigned to the Johns
Hopkins University and licensed to Genzyme Corporation.
I. Background
Following a decision on the preliminary motions, the APJ ordered the parties to
serve, their respective preliminary statements. Paper No. 87. Since junior party Lee
did not allege a date of conception (or reduction to practice) prior to the filing date of
senior party Vogelstein’s priority application, the APJ issued an order under 37 C.F.R.
§ 1.640(d)(3) for Lee to show cause as to why judgment should not be entered against
it. Paper No. 90. In response to the order to show cause, Lee requested this final
hearing. Paper No. 92.
The subject matter at issue is directed to a method of introducing a wild-type
p53 tumor suppressor gene into a mammalian cancer cell in a manner which results in
the suppression of said cell’s neoplastic phenotype.
When the p53 gene was originally isolated from rodent and human tumor cells, it
was thought to have oncogenic activity. See the ‘220 patent, col. 5, lines 36-40; LX
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