Interference No. 103,203
computer printout of the nucleotide sequence encompassing the mature tissue factor “with
minor inconsistencies.” Emphasis added. Nemerson Brief, p. 20. Facts 42 and 43, state
that Dr. Bach prepared a handwritten nucleotide sequence encoding the complete mature
tissue factor from amino acid 1 to amino acid 263 and communicated this information to
others on February 3 and 4, 1987. Id. However, in Fact 44 it is stated that on February 19,
1987, Dr. Bach prepared a handwritten amino acid sequence of the complete mature
tissue factor from which a nucleotide sequence encoding amino acids 1 to 263 could be
derived. Id., p. 21. Fact 45 alleges that on February 23, 1987, Dr. Bach “printed a
computer listing of the complete amino acid sequence for the full length, mature human
tissue factor from amino acid 1 to amino acid 263,” from which a nucleotide sequence
could be derived. Id. Finally, Fact 49 states that on March 24, 1987, Dr. Spicer, a co-
inventor, printed a computer listing of a nucleotide sequence which encodes the complete
mature tissue factor protein from amino acid 1 to amino acid 263. Id., p. 22. Thus, on their
face, the Nemerson et al. “facts,” are not consistent with one another as to the actual date
Nemerson et al. were in possession of a complete and correct nucleotide sequence within
the scope of Count 2. Cf. Fiers v. Revel, 984 F.2d at 1171-72, 25 USPQ2d at 1607. That
is, Nemerson et al. are stating as a “fact” that on February 3, 1987, the computer printout
of the
nucleotide sequence encoding mature human tissue factor in which they were
possession had “minor uncertainties” (Fact 41) yet, on the same date, Dr. Bach’s
handwritten nucleotide sequence is alleged to be complete (Facts 42 and 43) and correct.
However, on February 19 and 23, 1987, Dr. Bach does not appear to be in possession of
the complete nucleotide sequence (Facts 44 and 45). Rather, on the former date he is
35
Page: Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 Next
Last modified: November 3, 2007