Interference 105,039 Paper No. 28
Andree v. Klintz Page 11
compound in any of the more than 150 exemplified chemical
species. (1d.)
36. The only para-cyano compounds mentioned, according to
Drewes, are in the form of a generic formula at the top of
page 60. (1d., citing the Drewes declaration, Ex. 2013, 113.)
37. According to Drewes, this generic formula fails to
describe Andree's subgenus because it does not further limit the
meta-substituents. "If a smaller number of meta-substituents
were envisioned for the corresponding cyano compounds, this was
not clearly disclosed in the Klintz application." (Id. at 23,
citing the Drewes declaration, Ex. 2013, $18, bold italics
omitted.)
38. With regard to Count 2, Andree makes a similar
argument, urging that Klintz, while describing a genus of
diazonium salts in which R' = "halogen, cyano, nitro or
trifluoromethyl," does not provide an adequate written
description of the cyano-substituted diazonium salts claimed by
Andree's claim 5. (Id. at 24-25.)
39. In particular, Andree urges that the demonstration that
para-cyano is patentably distinct from R' = chloro for the
formula (I) class of compounds shows that the same is true for
the diazonium salts, which are precursors of the formula (I)
compounds. Thus, argues Andree, Klintz does not provide an
adequate written description of the diazonium salts. (1d.)
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