is “for blaze marks which single out particular trees.” Fujikawa, 93 F.3d at 1570, 39 USPQ2d at
1905.
Additionally, we view Bergland’s and Langone’s calculations based on the data in Engvall’s
example 1 as too speculative to give a reasonably reliable value for the affinity constant of the
antibodies and antigens used in that example. The testimony indicates that there are wide
discrepancies in the mathematical determination of affinity constants. Langone testified that the
affinity constant calculation could vary by a factor of 10, plus or minus, when different methods of
evaluation were used (ER 3855-58 and ER 4311-13). Bergland testified that a difference of 10-15
times could result depending on the quality of the data used in making the determination of the
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affinity constant. ER 1764. Drs. Engvall and Ruoslahti testified that different techniques of
determining the affinity constant will give you different affinity constant values. ER 3246-48; ER
2478-79.
In addition, we find that the calculations of the affinity constant made by Bergland and
Langone from Engvall’s example 1 data may well be questionable. As discussed below, one having
ordinary skill in the art would not necessarily determine the same values for the affinity constant from
the data in Engvall’s example 1 as determined by Bergland and Langone. We find that there is
insufficient information in Engvall’s example 1 for a person having ordinary skill in the art to make
a reliable determination of the affinity constant for either of the antibodies.
Lastly, Langone’s and Bergland’s calculations, to the extent that they are reliable at all, only
apply to the liquid-phase antibodies. As we show below, the evidence indicates that it is not possible
to mathematically determine the affinity constant for an antibody bound to a substrate.
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“I accept by such a method when we know that we are drawing, I mean, in a Sca[t]chard plot, if you
will not have the points along a straight line, you can get variation up to, as I said, 10 to 15 times difference.” ER 1764,
lines 11-15.
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