USPQ2d 1610, 1614 (Fed. Cir. 1997), quoting Breen v. Henshaw, 472 F.2d 1398, 1401, 176 USPQ
519, 521 (CCPA 1973).
2. Engvall’s alleged conception
We conclude, that based on the record before us, Engvall has failed to prove a conception of
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the subject matter of the count.
a. Engvall’s alleged conception of the use of monoclonal
antibodies having affinity constants of at least about 108
liters/mole
After careful review of the record and consideration of Engvall’s arguments, we conclude that
Engvall has not proved conception of every limitation of the count prior to August 4, 1980, the filing
date of David’s application. In particular, Engvall has not shown that she had possession of the
conception of an immunometric assay where both monoclonal antibodies had affinity constants of “at
least about 10 liters/mole” as specifically required by the count.8
Engvall argues that the evidence shows the conception of the use of “high affinity”
monoclonal antibodies. However, the weight of the evidence does not establish what the Engvall
inventors considered to be a “high affinity.” Implicit in Engvall’s argument is that the generic phrase
“high affinity” includes antibodies within the scope of the count. However, the fact that antibodies
within the scope of the count arguably might be within the scope of the generic phrase “high affinity,”
that phrase does not constitute a definite description of monoclonal antibodies having an affinity
constant of “at least about 10 liters/mole” as required by the count. See Bosies, 27 F.3d at 542, 308
USPQ2d at 1865 (“Although the compounds of the count arguably might be within the scope of the
generic formula set out in Benedict’s notebook, that formula does not constitute a definite description
of the compounds of the count.”).
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In the preliminary statement, Engvall asserts of a date of conception of mid-December 1978. We
could interpret “mid-December” to mean December 16, 1978. This would be the earliest date upon which Engvall may
rely in this proceeding. 37 CFR § 1.629(a) and (b). In her briefs, Engvall asserts a conception date of Fall of 1978. Fall,
of course, runs from September 21 to December 21. However, Engvall is estopped from asserting any date earlier than
set out in the preliminary statement. 37 CFR § 1.629(a) and (b); Dewey v. Lawton, 347 F.2d 629, 630-31, 146 USPQ
187, 188 (CCPA 1965). And where a time period is asserted, the date is presumed to be the last day of the period. Oka,
849 F.2d at 584, 7 USPQ2d at 1172. We could, therefore, use December 21 as the alleged date of conception.
Additionally, Engvall apparently considers “Fall, 1978" to include dates prior to January 3, 1979. Engvall Brief, pp. 70-
71. Thus, we could interpret Engvall’s assertion of Fall, 1978, as an allegation of a date no earlier than January 3,
1979. However, regardless of which date is used, we hold that Engvall has failed to prove a conception of the subject
matter of the count.
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