Geron and Novocell in Interference

Scott Daniels | December 16, 2009

The obvious focus of our Blog is reexamination practice. Our underlying belief, however, is that one must be flexible and follow the legal steps that are suitable for the individual facts of each case. In some cases, the correct approach is to seek reexamination, but in others, it may be to provoke an interference.

So it appears to be in the dispute between the stem cell companies, Geron and Novocell. Novocell owns U.S. Patent No. 7,510,876 which is entitled “Definitive Endoderm” and claims “endoderm cells that can differentiate into cells of the gut tube or organs derived therefrom.” Geron, however, believes that it was the first to invent this claimed technology.

Geron therefore filed on July 20 an Amendment in its pending Application 11/960,477, copying claims from the ‘876 patent and asking the PTO to declare an interference between the patent and the application. Geron additionally proposed a Count which is identical to Novocell’s claim 1 and Geron’s copied claim 10 and which constitutes the technical subject matter in dispute.

This past week, the PTO declared an interference between the Novocell patent and the Geron application. Significantly, the PTO declared that Geron was the senior party and Novocell the junior party, in view of Geron’s apparent earlier filing date. The PTO also stated all the ‘876 claims and all Geron’s copied claims “correspond to the Count,” i.e., they all recite subject matter patentably indistinguishable from the Count.

In the coming months, the parties will struggle for advantage in the case, perhaps by seeking to add patents or applications to the interference, to revise the Count, or to add or delete claims. In any event, the interference permits Geron to use its application to attack the Novocell patent, something not possible in reexamination.

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