Interference 105,039 Paper No. 28
Andree v. Klintz Page 13
Klintz remains entitled to its claims to the patentably distinct
generic invention." [Paper 29 at 2, record cite omitted.]
Discussion
Although Klintz has stated that it "agrees with Andree's
preliminary motion 1,11 Klintz has neither expressly requested
adverse judgment nor expressly conceded unpatentability of any of
its claims corresponding to the count. Moreover, the patent
statute expressly commits the determination of whether an
interference exists to the Director of the United States Patent
and Trademark Office. 35 U.S.C. § 135(a) ("Whenever an
application is made for a patent which, in the opinion of the
Director, would interfere . . . with any unexpired patent, an
interference may be declared . . . 11). Accordingly, we must
consider Andree's motion on its merits.
Andree's argument starts from the premise that if it proves
"unexpected results" for its claimed subject matter, it has
proven patentable distinctness, and that Klintz's failure of
written description then follows as a matter of law. In other
words, Andree reasons that Klintz could not have described the
subgenus compounds if it did not appreciate their (unexpected)
properties compared to the general properties shared by the genus
compounds.
Andree's argument is flawed because it overlooks the
condition that if Klintz has an adequate written description of
the subgenus compounds covered by claims 53-56, then those
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