A further explanation of why Deen's preliminary motions to substitute or add the
proposed count were denied appears within the decision. (Paper 62 at 13-24).
Dr. Chinnaivan's testimon
As to Deen's second point, the decision addressed Dr. Chinnaiyan's cross-examination
testimony regarding TNFR death domains. The decision stated (Paper 62 at 18-19):
Deen argues that we should not accept the testimony of Dr. Chinnaiyan.
In particular, Deen argues that Dr. Chinnaiyan's declaration testimony is
contradicted by Dr. Chirmaiyan's cross-examination testimony that... (FF 35)t'l:
(2) most TNFRs do not have death domains...
...However ... Dr. Chirmaiyan did not testify in his declaration that all
TNFRs have death domains. Our understanding of Dr. Chinnaiyan's testimony
is that it is necessary to characterize the intracellular domain to determine
activity of a potential TNFR. Dr. Chinnaiyan's testimony indicates that it would
be necessary to identify a death domain in order to characterize a TNFR as
apoptosis inducing. Since no death domain is identified in the TR7 fragment, the
fragment cannot be characterized as having apoptosis inducing activity.
Moreover, our determination that Deen did not sufficiently show that its provisional
application provided a constructive reduction to practice within the scope of either Count I or
2 "IFF 35" refers to finding of fact 35 of the decision which reads:
35. On cross-examination, Dr. Chinnaiyan testimony
indicated, inter alia, that:
(1) Most TNFRs do not have death domains (Exh.
2013 at 23), and
(2) even though there are exceptions (at least one
where a TNFR has only one CRD[cysteine rich domain]), most
TNFRs have multiple CRDs. Accordingly, the presence of
multiple CRI)s increases one's confidence that a TNFR has been
discovered. (Exh. 2001 at 37-50).
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