Interference No. 104,544 Paper149
McDonald v. Miyazaki Page 12
The most direct way of addressing this mystery would have been to prepare TSF
and then sequence it. Neither party has seen fit to do so. An unexplained failure by the
party with the burden of proof to produce the most probative evidence can, itself, be
very telling. Cf. Crown Operations Int'l. v. Solutia, Inc., 289 F.3d 1367, 1377 n.4,
62 USPQ2d 1917, 1923 nA (Fed. Cir. 2002) (expressing frustration with a party's failure
to generate test data to support its argument); accord Borror v. Herz, 666 F.2d 569,
573-74, 213 USPO 19, 23 (CCPA 1981) (citations omitted) (considering the effect of
missing inventor testimony):
[T]he unexplained absence of inventors testimony cannot and should not
be ignored. The inventor's testimony forrns a natural and expectable
element of an interference party's total proof. Under the evidentiary rule,
the unexplained failure to call any known non-hostile person who has
direct knowledge of the facts being developed by the party raises the
inference that the testimony would be unfavorable or at least would not
support the case, unless the testimony of such a witness would be
cumulative or inferior to what is utilized.
[41] As late as 15 May 1992, Dr. McDonald noted [1028 at 80]8 in distinguishing TSF from
other possible cytokines with thrombopoietic activity:
While it is possible that thrombocytopoiesis may be regulated by multiple
factors, the ability of our TSF preparation to stimulate platelet recovery in
irradiated mice in a manner similar to RAMPS suggests the presence of a
single factor with thrombocytopoietic physiological regulatory potential.
This factor in our preparation does not appear to be IL-6 or GM-CSF, but
until DNA sequence for the factor is cloned, the exact identity of this
molecule remains unknown.
8 C.D. Carter & T.P. McDonald, OThrombopoietin from Human Embryonic Kidney Cells Causes
Increased Throbocytopoiesis in Sublethally Irradiated Mice", 132 Radiation Res. 74 (1992). At page 80, the
publication notes that the manuscript was received 6 February 1992 and accepted 15 May 1992.
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