Are the Particle Size and Sedimentation Rate Limitations Material Limitations of the Count?
Hitzeman contends that the Board erred in requiring him to demonstrate that he had conceived of the particle size and sedimentation rate limitations of the counts prior to June 30, 1981, the date of Rutters simultaneous conception and reduction to practice. Hitzeman argues that it is sufficient to demonstrate that he had conceived of all the DNA materials recited in the counts. According to Hitzeman, the formation of HBsAg particles in yeast is an inherent result of introducing the vector they designed into yeast. He argues that [s]pecific conception of this result is not necessary. We disagree. This court and its predecessor have long recognized that nothing is better settled in patent law than that in interference cases express limitations in counts may not be ignored. McBride v. Teeple, 109 F.2d 789, 799, 44 USPQ 523, 533 (CCPA 1940) (citing cases). Accordingly, all limitations in interference counts will be regarded as material to the invention covered by the counts. Meitzner v. Co
