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Interference 105,039 Paper No. 28
Andree v. Klintz Page 10
31. Andree states that Klintz is entitled to a patent
having the generic claims: "even if the interference is
terminated, Klintz remains entitled to its claims to the
patentably distinct generic invention." (I'd. at 20, second full
paragraph, last sentence.)
32. According to Andree, Bigham v. Godtfredsen, 857 F.2d
1415, 1417-18, 8 USPQ2d 1266, 1268-69 (Fed. Cir. 1988) holds that
when a subgenus is patentably distinct from the genus, "the
description of the genus cannot serve as a written description
for a subgenus or a species embraced by the genus, even if the
genus is a limited one." (Id. at 21.)
33. Therefore, given the unexpected results established for
its para-cyano, meta-substituted subgenus, Andree argues that
Klintz's generic claims, i.e., claims 1-7, 12, 13, 15, 16, 26-30,
36, 37, 39, 40, and 43-51, are not described by the generic
disclosure in the specification and are too broad to be drawn to
the same patentable invention as Andree's involved claims 1-4
and 6. (1d.)
34. Andree argues that claims 53-56, which were "copied" to
provoke the interference, lack an adequate written description.
(Id. at 22.)
35. According to Andree, Klintz's involved application
lacks any blaze marks highlighting the subject matter of these
claims; in particular, there are no examples of a para-cyano
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