(2) Deen is entitled to benefit of its provisional applicatio&ý because Deen's
disclosure of "a genetic fragment of a new tumor necrosis factor receptor (TNFR) from which
that TNFR could be, and eventually was, produced, entitled Deen to the benefit of the filing date
of its provisional application." According to Deen, "[t]he Board's error in this respect arose from
its failure to recognize" that the testimony of Ni witness Dr. Chirmaiyan was discredited upon
cross-examination by Deen. In particular, Deen argues that Dr. Chinnaiyan's testimony "was
discredited because Dr. Chinnaiyan's conclusions (as an expert in death domain-containing
TNFR's) were based on the absence of multiple death domains in the sequence disclosed in
Deen's provisional application" ( Paper 65 at 2-3) (emphasis in original).
Deen's points are directed to areas where it disagrees with the decision. However, Deen
has not explained what we misapprehended or overlooked in rendering the decision.
The substime count
In particular, regarding Deen's first point, the decision addressed why Deen's
preliminary motions to substitute or add Deen's proposed count were denied. The decision
stated:
(Paper 62 at 4):
Deen has not shown why it is necessary to substitute or add a count having
the breadth of the proposed count in view of its proffer of proof. Moreover, Deen
has not shown how the disclosure of the nucleotide sequence contained in its
provisional application amounts to a constructive reduction to practice of an
embodiment within the scope of the proposed count. Accordingly, Deen has not
sufficiently shown why it is necessary to substitute or add the Deen proposed
count and we do not substitute or add the proposed count.
Application 60/041,796, filed 2 April 1997.
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