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Federal Circuit discusses enablement, written descriptionMay 31, 2006

In a recent case, the Federal Circuit settled a dispute determining which group of inventors were the first to invent a new method to produce vaccines for viruses. Virus vaccines are typically ‘attenuated’ viruses, or rather viruses that have lost most or all of their ability to cause disease which is usually accomplished by inactivating an essential gene in the virus’s genetic code inhibiting/reduction reproduction in host cells. Unfortunately, this presented a problem for vaccine producers: the attenuated vaccine was very difficult to produce in commercial quantities because of the slowed growth rate. The invention in the case allowed attenuated viruses to be produced in greater quantities by inserting the inactivated gene into the cells used to produce the attenuated viruses. Because the virus’s missing gene is present in the cells, the attenuated virus can reproduce at a ‘normal’ rate in the cell cultures, but will still be attenuated when used in a vaccine.In this case, two groups of inventors both claimed to have invented this method, so the Patent Office declared an interference. An interference is an administrative proceeding at the Patent Office used to determine who the first inventor or group of inventors of an invention is, and awards priority to that inventor or group of inventors. The Inglis group of inventors had the earlier filing date, meaning that presumptively they were entitled to the patent over the Falkner group unless the Falkner group could either prove earlier invention (which they could not), or that Inglis was not entitled to their earlier date. Falkner contended that the earliest Inglis applications did not fully describe the invention as required by

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