Interference No. 102,572
heavy and light chain genes for co-expression” (emphasis added) (CR-15, ¶ 3). The
written proposal indicates that Cabilly et al. would construct a strain carrying both heavy
and light chain genes and “try to get in vivo assembly of active antibody” (emphasis added)
(CX-2, Bates No. 922). In addition, Wetzel testified (CR-20, ¶ 4-5) that a major hurdle as
33
to expression of immunoglobulin in E.coli was expected to be in the folding of the protein.
Riggs' and Wetzel’s testimony as well as CX-2 provide a clear indication that the
contemplated process was not a complete idea of the process of the subject matter of the
count which would allow the skilled worker to carry out the process of the count in issue.
Herein, the evidence indicates that Cabilly et al. had but a hope or wish to produce active
antibodies in bacteria; and, there is no supporting evidence to establish the development
of the means to accomplish that result or evidence of a disclosure to a third party of a
complete conception. Conception is not the perception or realization of the desirability of
producing a certain result; rather it is the perception or realization of the means by which
the result can be produced. Rivise & Caesar Vol. I, § 110, page 317. Accordingly, Cabilly
et al. were unable to establish conception until Cabilly et al. reduced the invention to
practice through a successful experiment.
Cabilly et al. continually argue that they established conception when the genes
encoding the Ig heavy and light chains were isolated and sequenced by Holmes and Rey
33The Cabilly et al. specification (pages 24-25) supports this view in indicating that
attempts to reconstitute active antibodies from native IgG had been largely unsuccessful.
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