GRAY et al v. ALTON et al - Page 13




               Alton’s notebook page (FF 26). Thus, both Dr. Stabinsky’s testimony and the notebook page are                       
               consistent with Dr. Alton’s testimony and vice versa.                                                               
                       While Dr. Stabinsky has not explicitly testified that Dr. Alton told her of his plan for                    
               constructing [Met-1, des-Cys1, des-Tyr2, des-Cys3]IFN-(, when we consider all the pertinent                         
               evidence, we determine that Dr. Alton’s testimony is credible.  We note for instance, that:                         
                       (1)    Dr. Stabinsky’s notebook page indicates that she prepared a linker for “K. Alton”                    
               for use in expressing immune interferon lacking the first three amino acids on 4 October 1982,                      
                       (2)    Dr. Alton’s testimony and notebook page indicate that Dr. Stabinsky provided                         
               him with the linker he needed to construct [Met-1, des-Cys1, des-Tyr2, des-Cys3]IFN-( on 18                         
               October 1982,                                                                                                       
                       (3)    the linker Dr. Stabinsky recorded in her notebook is the same as the linker that                     
               Dr. Alton recorded in his notebook, and                                                                             
                       (4)    it appears that the linker found in both Dr. Alton’s and Dr. Stabinsky’s notebook                    
               would have been useful in constructing [Met-1, des-Cys1, des-Tyr2, des-Cys3]IFN-( (FF 19).                          
                       Thus, the evidence before us sufficiently establishes that as of at least 18 October 1982,                  
               Dr. Alton had both the idea of [Met-1, des-Cys1, des-Tyr2, des-Cys3]IFN-( and an idea of how to                     
               produce [Met-1, des-Cys1, des-Tyr2, des-Cys3]IFN-( (i.e., using the synthetic linker produced by                    
               Dr. Stabinsky). However, to complete conception of the invention, it is necessary that Alton                        
               conceived of a utility for [Met-1, des-Cys1, des-Tyr2, des-Cys3]IFN-(.                                              
                                                              Utility                                                              
                       Count 2 does not specify a use for the [Met-1, des-Cys1, des-Tyr2, des-Cys3]IFN-( and                       
               thus the conception of any use would result in conception of a complete and operative invention                     


                                                                13
                                                                





Page:  Previous  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next 

Last modified: November 3, 2007