STICE et al. V. STICE et al. V. STRELCHENKO et al. V. HENSEN et al. - Page 30





                for cloning, they reached this common goal by significantly different techniques. An important                                            
                aspect of Strelchenko's approach, as represented by the precritical date claims, was reprogramming                                        
                mature cells to make them totipotent and use these totipotent cells or their nuclei as the donor                                          
                material in cloning. E.g., Strelchenko Application 09/357,445, Paper I (specification), p. 4,11.12-23.                                    
                Strelchenko specifically detailed techniques to accomplish this reprogramming. Strelchenko                                                
                Application 09/357,445, Paper I (specification), p. 50,11.13-26. These reprograrnmed and totipotent                                       
                cells are then grown in culture and are used as the source of the donor material for nuclear transfer,                                    
                Strelchenko Application 09/357,445, Paper I (specification), p. 61,11. 18-19. On the other hand, the                                      
                Stice 577 claims use growing and cultured differentiated somatic cells without requiring                                                  
                reprogramming prior to nuclear transfer. In the Stice method, mature differentiated cells are                                             
                collected, grown in culture and used as the source of the donor material for nuclear transfer without                                     
                any reprogramming. Stice 577, col. 15,1. 50 - col. 17,1. 53. Indeed, Stice's claims in requiring the                                      
                insertion of donormaterial from a "proliferating somatic cells which have been expanded in culture"                                       
                excludes the use of totipotent cells. Strelchenko's opposition has not asserted, nor directed us to                                       
                evidence, which would tend to show that the culturing of proliferating somatic cells described in the                                     
                Stice patent would inherently convert those cells into totipotent cells prior to use in nuclear transfer.                                 
                Strelchenko's precritical date claims do not claim the same or substantially the same subject matter                                      
                as the Stice 577 claims.                                                                                                                  
                                                                       IV.                                                                                
                         We hold that Strelchenko's precritical date claims are not directed to the same or                                               
                substantially the same subject matter as the claims of the Stice '577 patent. Accordingly,                                                
                Strelchenko's involved Claims 57-58, 61-63,69-88,106,112-115 and 118 are barred by 35 U.S.C.                                              
                § 135(b)(1).                                                                                                                              
                         The University of Massachusetts' Preliminary Motion No. I is granted.                                                            
                FINAL JUDGMENT                                                                                                                            
                         This interference was declared because an interference was thought to exist between the                                          
                claims of Strelchenko's application, Claims 57-58,61-63,69-88,106,112-115 and 118, and various                                            
                claims of the Stice patents. All of Strelchenko's involved claims have been held to be barred by 35                                       
                U.S.C. § 135(b)(1). Strelchenko has not attempted to add a claim that interfered with Stice's claims                                      

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