Interference No. 103,203
acid sequence represented by Figure 1 [of Edgington’s patent] from about residue 1 to
about residue 263, on the date alleged; i.e., February 3, 1987. To the contrary, as pointed
out by Edgington et al., Nemerson et al. were still trying to determine the correct nucleotide
sequence as late as February 14, 1987. NR 1958-1970. Accordingly, since this date is
two days after the critical date; i.e., February 12, 1987, we hold that Nemerson et al. have
not established an actual reduction to practice of an invention within the scope of Count 2
prior to the effective filing date accorded Lawn et al. Thus, Lawn et al. as senior party must
prevail.
Nemerson et al. v. Edgington et al.
In view of our decision with respect to Nemerson et al. and Edgington et al. and
their respective failure to establish actual reduction to practice of a nucleotide sequence
within the scope of the count prior to Lawn et al.’s effective filing date of February 12,
1987, the case for priority between Nemerson et al. and Edgington et al. is now moot.
JUDGMENT
In view of the foregoing, judgment of the subject matter of the count is awarded to
senior party to RICHARD M. LAWN, GORDON A. VEHAR and KAREN L. WION and
against junior party, YALE NEMERSON, WILLIAM H. KONIGSBERG and ELEANOR K.
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