Sanofi-Aventis v. Pfizer, Inc., No. 12-1345 (Fed. Cir. 2013)
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IL-13 is a regulatory molecule called a cytokine. Cytokines interact with cytokine receptors located on target cells. Sanofi and Pfizer were conducting research, for therapeutic and diagnostic purposes, and each discovered and filed patent applications directed to the polynucleotide encoding the IL-13 protein binding chain. The patent is awarded to the first applicant to conceive and reduce to practice the invention represented by an interference count, in accordance with Patent and Trademark Office (PTO) rules. Sanofi had a December 6, 1995 priority date. Pfizer’s filing date was March 1, 1996; Pfizer bore the burden of proving a date of conception earlier than Sanofi’s date. Pfizer presented evidence that it had isolated and identified the desired cDNA before that date, but, due to sequencing errors, did not then have a completely accurate analysis of the entire nucleotide sequence. The PTO Board found that Pfizer had “the claimed polynucleotide in hand with some additional identifying information including at least a partial sequence,” and ruled that Pfizer “established conception and actual reduction to practice of a polynucleotide within the scope of count 3” before the Sanofi date. The Federal Circuit affirmed; possession and appreciation of the actual isolated DNA is dispositive for priority of conception for an interference count directed to isolated DNA.
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