Interference 102,728
1983. Declaration, p. 3, para. 5. Dr. Tekamp-Olson credibly describes how this
technique would have been employed by such persons, at the time the application was
filed, to make the “n=0” DNA construct described in Brake 1. Dr. Tekamp-Olson
testified that one skilled in the art would have mutagenized (modified) the DNA
construct pYEGF-8 (Brake 1, p. 14, line 13),17 using an oligonucleotide primer which
lacks the sequence encoding the DPAP A (the glu-ala residues in the "-factor spacer
sequence) site to make the construct of the count.18 Id., p. 3, para. 5a.
We find credible Dr. Tekamp-Olson’s testimony that given the Brake 1 disclosure
and general knowledge in the art, one skilled in the art would have been able “to make”
a DNA construct within the scope of Count 1 at the time the Brake 1 application was
filed. That is, we find that the technique of in vitro mutagenesis described by Dr.
Tekamp-Olson involves digesting the DNA construct described in Brake 1 with a well-
known restriction enzyme (BamHI), subcloning the digested DNA into a well-known
17 pYEGF-8 is the same as pY"EGF-21 of Brake 2.
18 We note that in its Opposition, Singh does not challenge this method of
making the invention of the count. We further note that two of Singh’s declarants, Dr.
Singh and Dr. Hitzeman, testify that site-directed mutagenesis was well known in the art
by 1982. To that end Dr. Singh testified:
During the period 1982 to 1983 site directed deletion mutagenesis was a known
technique. As set forth in Sambrook, et al. “Molecular Cloning” 2nd Edition
(1989) at pages 15.51 and 15.52 (Singh Exhibit 36, Bates Nos. 000564-000566),
this technique was known in the early 1970's and had developed into an
established methodology by 1982. SR 0568, para. 58.
Dr. Hitzeman’s statement is identical to that of Dr. Singh. SR 0168-0169,
para. 9. Thus, we find Dr. Singh’s declarants agree with Dr. Tekamp-Olson’s
statements.
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