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`BoxInterferences@uspto.gov
`Tel: 571-272-9797 Filed: 19 August 2015
`
`
`
`Before: FRED E. McKELVEY, SALLY GARDNER LANE, and
`DEBORAH KATZ, Administrative Patent Judges.
`
`FRED E. McKELVEY, Administrative Patent Judge.
`
`DECISION ON FORWARD PHARMA MOTION 2
`37 C.F.R. § 41.125(a)
`Forward Pharma Motion 2 (Paper 163) seeks entry of an order vacating
`benefit for the purpose of priority (i.e., an earlier constructive reduction to practice)
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`BIOGEN MA INC.
`Junior Party
`Patent 8,399,514 B2,
`
`v.
`
`FORWARD PHARMA A/S
`Senior Party
`Application 11/576,871.
`
`
`
`Patent Interference No. 106,023 (McK)
`Technology Center 1600
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`
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`awarded to Biogen when the interference was declared (Paper 1, page 6) as to
`Biogen Provisional Application 60/888,921, filed 8 February 2007 (Ex. 2006A).
`The basis for the motion is that Biogen failed to amend its U.S. Application
`12/526,296, filed 13 January 2011 (Ex. 2004A) to contain a specific reference to
`the Biogen Provisional application.
`Without an amendment, Biogen is not entitled to an earlier constructive
`reduction to practice based on its Provisional Application.
`Biogen attempted to amend its U.S. Application 12/526,296. Biogen
`Motion 5 (Paper 94).
`Biogen Motion 5 has been denied. Paper 177.
`Our decision denying Biogen Motion 5 resolves the same issue raised in
`Forward Pharma Motion 2.
`Because our decision on Biogen Motion 5 grants Forward Pharma the relief
`it seeks in Forward Pharma Motion 2, and Biogen had a full and fair opportunity to
`address the relief sought by Forward Pharma Motion 2 in presenting Biogen
`Motion 5, the issue raised in Forward Pharma Motion 2 has become moot.
`ORDERED, for the reasons given above, Forward Pharma Motion 2 is
`dismissed as moot without prejudice to being renewed should future circumstances
`dictate a need to decide Forward Pharma Motion 2.
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`cc (via-email):
`
`Counsel for Biogen MA Inc.:
`
`Michele C. Bosch, Esq.
`Barbara C. McCurdy, Esq.
`FINNEGAN, HENDERSON, FARABOW
` GARRETT & DUNNER L.L.P.
`michele.bosch@finnegan.com
`barbara.mccurdy@finnegan.com
`
`Counsel for Forward Pharma A/S:
`
`Anthony M. Zupcic, Esq.
`Daniel S. Glueck, Esq.
`FITZPATRICK, CELLA, HARPER & SCINTO
`azupcic@fchs.com
`dglueck@fchs.com
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