IN RE KUBIN

No. 2008-1184.

561 F.3d 1351 (2009)

In re Marek Z. KUBIN and Raymond G. Goodwin.

United States Court of Appeals, Federal Circuit.

April 3, 2009.


Attorney(s) appearing for the Case

Barbara R. Rudolph, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of Washington, DC, argued for appellants. With her on the brief were Herbert H. Mintz and Bart A. Gerstenblith. Of counsel was Stuart L. Watt, Wendy A. Whiteford and Gail A. Katz, Amgen Inc., of Thousand Oaks, CA, and Kathleen Fowler, of Seattle, WA.

Janet A. Gongola, Associate Solicitor, Office of the Solicitor, United States Patent and Trademark Office, of Arlington, VA, argued for the Director of the United States Patent and Trademark Office. With her on the brief were William G. Jenks, Mary L. Kelly, and Stephen Walsh, Associate Solicitors. Of counsel was Raymond T. Chen, Associate Solicitor.

Rouget F. Henschel, Foley & Lardner LLP, of Washington, DC, for amicus curiae Biotechnology Industry Organization. With him on the brief were Stephen B. Maebius and Philip G. Kiko. Of counsel was Hans Sauer, Biotechnology Industry Organization, of Washington, DC, and Brian P. Barrett, Eli Lilly and Company, of Indianapolis, IN.

Matthew I. Kreeger, Morrison & Foerster LLP, of San Francisco, CA, for amicus curiae Novartis Vaccines and Diagnostics, Inc. Of counsel on the brief was Beth S. Brinkmann, of Washington, DC.

Jeffrey P. Kushan, Sidley Austin LLP, of Washington, DC, for amici curiae Glaxosmithkline, et al. With him on the brief were Paul J. Zegger, Jon P. Santamauro, and Eric M. Solovy.

James J. Kelley, Eli Lilly and Company, of Indianapolis, IN, for amicus curiae Eli Lilly and Company. With him on the brief were MaryAnn Wiskerchen, Gregory A. Cox, Steven P. Caltrider and Robert A. Armitage.

Before RADER, FRIEDMAN, and LINN, Circuit Judges.


RADER, Circuit Judge.

Marek Kubin and Raymond Goodwin ("appellants") appeal from a decision of the Board of Patent Appeals and Interferences (the "Board") rejecting the claims of U.S. Patent Application Serial No. 09/667,859 ("'859 Application") as obvious under 35 U.S.C. § 103(a) and invalid under 35 U.S.C. § 112 ¶ 1 for lack of written description. Ex parte Kubin, No. 2007-0819, 83 U.S.P.Q.2d 1410 (B.P.A.I.2007) ("Board Decision"). Because...

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