Interference 105,039 Paper No. 28
Andree v. Klintz Page 9
Andree's argument for no interference-in-fact
26. Andree argues that it has demonstrated, via testimony
by Dr. Drewes, that its para-cyano compounds have unexpectedly
superior selective herbicidal activity compared to the
corresponding para-chloro compounds exemplified by Klintz.
(Paper 27 at 15-19.)
27. According to Andree, it has also demonstrated, via
testimony by Dr. Drewes, that the selection of the meta
substituent is also critical for the para-cyano compounds. (-Td.)
28. Andree urges that the unexpected results establish the
patentability of the subject matter of its involved claims 1-4
and 6, and that the unexpected results redound to the
patentability of the diazonium precursor claimed in claim S.
(Id. at 16.)
29. Moreover, Andree argues that although Klintz mentions
cyanc, compounds, Klintz "was oblivious to the significance of the
para-cyano compounds having the proper meta-position substituent.
If Klintz had knowledge (possession) of the markedly superior
para-cyanc, compounds having the proper meta-position substituent,
it is reasonable to expect that he would have disclosed and
preferred such compounds." (Id. at 19.)
30. Andree argues further that Klintz's preference for
para-chloro compounds, the only compounds exemplified in the
Klintz disclosure, would have led skilled readers away from the
para-cyano compounds. (-Td.)
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