07110791 (B.P.A.I. Nov. 21, 2001)

King et al.

Board of Patent Appeals and InterferencesNov 21, 2001

07110791 (B.P.A.I. Nov. 21, 2001)

This opinion is not binding precedent of the Board. Paper106 Filed by: Trial Section Motions Panel Box Interference Washington, D.C. 20231 Tel: 703-308-9797 Fax 703-305-0942 UNITED STATES PATENT AND TRADEMARK OFFICE C. RICHTER KING, MATTHIAS H. KRAUS, and STUART A. AARONSON, Junior Party (Application 07/110,791) M A I L LE D) V. NOV 2 1 2001 DENNIS J. SLAMON, PA7. & T.M. OFPCE WILLIAM L. McGUIRE, and AXEL ULLRICH'),aRc) OF PATENT XPPEALS !NTEP-FEP.F..NCE6 Senior Party (Patent 4,968,603) Patent Interference No. 104,519 Before LEE, GARDNER-LANE, and TIERNEY, Administrative Patent Judge GARDNER-LANE, Administrative Patent Judge. JUDGMENT PURSUANT TO 37 CFR Â§ 1.662 King has filed a paper stating the following (Paper 105 at 2) : In accordance with the provisions of 37 C.F.R. Â§ 1.662, King hereby abandons the contest as to the existing count. King's statement is treated as a request for entry of adverse judgment against King as to all its claims that correspond to the count. See 37 CFR Â§ 1.662(a). ORDE Upon consideration of the record of the interference, it is ORDERED thatjudgment on priority as to Count 2', the sole count in the interference, is awarded against junior party C. RICHTER KING, MATTHIAS H. KRAUS, and STUARTA.AARONSON; FURTHER ORDERED that junior party C. RICHTER KING, MATTHIAS H. KRAUS, and STUART A. AARONSON, is not entitled to a patent containing claims 44, 46, 47, and 62 of application 07/110,791, which correspond to Count 2; FURTHER ORDERED that a copy of this decision be given a paper number and be entered in the King's 0.7/110,791 application and Slamon's 4,968,603 patent; and Count 2 and the claims of the par-ties which correspond to Count 2 are set forth at Paper 100 (Order Redeclaring Interference). _2- FURTHER ORDERED that, if there is a settlement agreement, the parties are directed to 35 USC Â§ 135(c). ,O/FÃ½SON LEE 6Ã½ninistrative Patent Judge BOARD OF PATENT C7.76 APPEALS AND SALLY/GARDNER-LANE )INTERFERENCES Administrative Patent Judge MICHAEL P. TIERNEY Administrative Patent Judge -3- cc (via facsimile and first class mail): Counsel for Slamon (real parties in interest: 1. The Regents of the University of California (licensee, Bayer Corp.) 2. The Regents for the University of Texas System (licensee, Ventana Medical Systems) 3. Genentech) Steven B. Kelber Piper, Marbury, Rudnick & Wolfe, LLP 1200 Nineteenth St., N.W. Washington, D.C. 20036-2430 Tel: 202-861-3900 Fax: 202-223-2085 e-mail: steven.kelber@piperrudnick.com Counsel for King (real party in interest, The United States of America as represented by the Secretary, Department of Health and Human Services) William R. Johnson Mary L. Miller NEEDLE & ROSENBERG, P.C. Suite 1200, The Candler Building 127 Peachtree St., N.E. Atlanta, GA 30303 Tel: 404-688-0770 Fax: 404-688-9880 e-mail: johnston@needlepatent.com Susan S. Rucker Office of Technology Transfer National Institutes of Health 6011 Executive Blvd., Ste. 325 Rockville, MD 20852-3804 Tel: 301-496-7056, ext. 245 Fax: 301-402-0220 -4- It is ORDERED that the interference is redeclared as follows: 1 Count 2', set forth below, is substituted for Count 1 (material deleted from count 1 is stricken out). Count 2 A method according to claim 1, 7, or 17 of Slamon (4,968,603) or A method according to claim 44, 60, 6i, or 62 of King (07/110,791). 2. The claims of the parties are: Slamon: 1-22 King: 44, 46, 47, and 60-62 The claims of the parties which correspond to Count 2 are: Slamon: 1-22 King: 44, 46, 47, and 62 The claims of the parties which do not correspond to Count 2 are: Slamon: none King: 60 and 61 Count 2 is the same as proposed count A of Slamon preliminary motion 1 (Paper 31). 2