Interference 102,728
First, we agree with Brake that Singh has not pointed to any evidence which
shows when the “loop deletion” method was actually developed by researchers at
Genentech. Paper No. 190, p. 59. The record shows that a description of the method
may have been submitted for publication on April 4, 1983, and that a description was
published in September, 1983. Paper No. 190, p. 14; SX 53. Thus, on the record
before us, we have only attorney argument that the loop deletion mutagenesis
technique was known at Genentech in late 1982. Paper No. 151, pp. 85-86; Paper No.
180, p. 9. It is well established that attorney argument cannot take the place of
objective evidence. In re Payne, 606 F.2d at 315, 203 USPQ at 256; Meitzner v.
Mindick, 549 F.2d at 782, 193 USPQ at 22; In re Lindner, 457 F.2d at 508, 173 USPQ
at 358. In addition, it is not clear when or how Dr. Singh became aware of this
technique. We find no mention of the loop deletion mutagenesis technique or reference
to date(s) of discussions with the Genentech researchers who developed the technique,
such as Mr. Vasser,38 in the sections of Dr. Singh’s declaration relied upon by Singh.
38 Mr. Vasser is listed as a co-author on the Genentech publication which
describes the loop deletion mutagenesis technique. SX 53, Bates No. 703. However,
Singh only relies on Mr. Vasser’s testimony to corroborate the ordering of the 24-mer on
December 1, 1982. Paper No. 180, p. 14. Mr. Vasser states (SR 1059, para. 4):
4. At the request of counsel, Mr. Ng and I searched for and have
retrieved from our files the Synthetic DNA Request forms for all eight of the DNA
synthesis requests which are discussed in Mr. Ng’s declaration. The eight DNA
sequences discussed in Mr. Ng’s declaration are requested on six Synthetic DNA
Request forms. I have reviewed the six Synthetic DNA Request forms and
recognize my signature and Mr. Ng’s signature on these forms. Five of the
copies are the “pink” copies. These have been in our possession since the
original requests were given to us and are in the original condition with no
alterations. We also located and retrieved the sixth form, numbered 02478,
62
Page: Previous 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 Next
Last modified: November 3, 2007