In re Wands: (C4P21) Court upholds patent.
a.    Claim: Not process of creating antibodies p23 Rather, method for using antibody to test for antigen of Hep B. A few types of antibodies, their contribution is using IgM., has good binding affinity.
b.    If you are claiming a process to have enabled process must be able to enable all the ingredients. If you have tough ingredients rule kicks in, if there is method for making ingredients needed for method, must give us that too.
(A)    Cell deposit: One way to satisfy this rule. Satisfies showing us how to make it.
(B)    Why does W concede deposit does not enable the generic claims that are on appeal?
(1)    Wand’s claim is really broad: Wants antibody claim across broad range of affinity, but deposit only enables 5 or 6 different antibodies.
(2)    Claim covers more than this, so that’s why he didn’t argue cells enable, he wanted all the high affinities, broad claim, yet his deposit could only enable the antibodies he deposited. So that’s why he didn’t lean on the deposits.
(3)    Alternatively, may have not wanted to deposit for future inventions.
(4)    Wand thus argues starting materials are readily available (antibodies)
c.    Two Levels of Confusion. Court isn’t clear which of the 2 bothers them.
(A)    Did Wands know how reliable this thing is?
(B)    How reliable is it? If we’re worried that it’s not reliable enough why not make them go back and try harder but give them the patent.
(1)    Did process several times, archive of cells but tested only some of them. Told patent office that they did this, we went through it 4 times and stopped short of fusing to cancer cell several times.
(2)    Don’t know what happens for remaining 196 cases. There is no requirement to test that many times but concern that maybe they chose ones that were easy, skewing rate?
– No obligation to do 200 tests, might say if they do little its unreasonable but holding them
accountable for # they didn’t complete seems unreasonable.
(C)    Court: Looks pretty reliable, their process yields what they say. Bundled the 2 issues together so we don’t know which court was worried about. We all know this is reliable. Don’t know what would have happened had it only worked 1% of time.
(D)    Key: Requires that artisan skilled in art believes that it works. They’ve shown is they have something that at least sometimes works. What seems special is inventors don’t know whether it always works. But holding holds on other ground, it works and doesn’t say whether they need to know it works or not.
d.    Problem with allowing patent when ingredients aren’t really available: Essentially double-patenting, first patent process, then later the ingredient?