Interference No. 103,203
protein ends at the “His” residue at position 259.
In addition, we find that Dr. Bach’s testimony is inconsistent with other evidence and
the testimony of two of the Nemerson et al. co-inventors (Drs. Spicer and Konigsberg) and
another witness (Dr. Horton). For example, we find that Dr. Bach’s testifies that he
determined the correct nucleotide sequence of tissue factor protein and that it [the protein]
was 263 amino acids in length on February 3, 1987, yet computer printouts of the
nucleotide/amino acid sequence data, apparently generated by co-inventor Dr. Spicer, on
later dates (e.g., NRE 282, dated February 14, 1987) still contained errors in the
nucleotide and amino acid sequences. See the testimony of Dr. Horton, NR 1958- NR
1970; Dr. Spicer, NR 3953-57, NR 3965; and Dr. Konigsberg, NR 1983, discussed below.
Thus, on this record, we do not find Dr. Bach’s testimony, which is inconsistent (i)
with other physical evidence, i.e., the computer printout of the nucleotide sequence which
is dated February 3, 1987, as well as those generated on later dates, and
(ii) with the testimony of the other witnesses; to be credible. Semiconductor Energy
Laboratory v. Samsung Electronics, 4 F. Supp. 2d 477, 483 n.8, 46 USPQ 1874, 1879
n.8, (E.D. Va 1988). Accordingly, we do not find that the testimony of Dr. Bach, in
combination with other evidence and testimony, establishes, by a preponderance of the
evidence, that Nemerson et al. had an actual reduction to practice of a nucleotide
sequence within the scope of Count 2 on February 3, 1987.
As to the testimony of Dr. Spicer, now a co-inventor, we find that Nemerson et al.
rely only on her testimony at NR 3822-3825 wherein she briefly testifies about the
computer listing of the nucleotide sequence of which she was in possession on February
3, 1987 (NRE 100, Fact 41). Thus, for Nemerson et al.’s case-in-chief, we have limited our
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