Interference 102,728
FINAL DECISION ON REMAND
I. Prosecution History
1. In 1991, this interference was declared between then senior party Singh
and junior party Brake.
2. During the preliminary motion phase of the interference, Brake’s
Preliminary Motion 2 for benefit, for the purpose of priority, of the January 12, 1983
filing date of U.S. Application 06/457,325, was granted.
. 3. The granting of this preliminary motion resulted in Brake becoming senior
party.
4. Oral argument at final hearing was held before a merits panel of the
Board of Patent Appeals and Interferences (hereinafter, the Board) on May 11, 1998,
and final judgment was issued in favor of Brake on August 31, 1998.
5. Singh appealed the Board’s final judgment to the Court of Appeals for the
Federal Circuit arguing that the merits panel had erred in concluding that Singh had
failed to prove conception of the subject matter of the count prior to the effective filing
date accorded to Brake and that the Board should have reconsidered Brake’s
Preliminary Motion 2 for benefit.
6. The Federal Circuit held, inter alia, that the Board “erred in rejecting
Singh’s argument that the 24-mer[3] order on December 1 [1982] had no corroborating
3 We direct attention to the discussions of the 24-mer on pp. 45-46, 53 and 55,
infra. Briefly, the 24-mer is an oligonucleotide consisting of 24 nucleotides which is said
to have been ordered by Dr. Singh on December 1, 1982. The nucleotide sequence of
the 24-mer is AGGGAGATCACATCTTTTATCCAA. Singh Exhibit 3, p. 126. According
2
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