Interference 102,728
Conception of a complete and definite method of making the DNA construct using “loop
deletion” mutagenesis requires a showing that Dr. Singh planned to employ both the
24-mer and the LAC primer prior to January 12, 1983. This Singh has not done.
Hybritech Inc. v. Monoclonal Antibodies, Inc.
We note the Court’s comments that belated witnessing of laboratory notebooks
does not undermine all the corroborative value of the entries therein. Singh v. Brake,
222 F.3d at 1369, 55 USPQ at 1678. The Court directs our attention to Hybritech Inc.
v. Monoclonal Antibodies, Inc., 802 F.2d at 1378, 231 USPQ at 89 (Fed. Cir. 1986), and
points out that “Hybritech indicates that in some cases, conception may be proved
solely on the basis of laboratory notebook entries witnessed subsequent to their entry.”
Id. We have considered the referenced section of Hybritech, however, we find that
there are crucial differences between the facts of this case and the facts in Hybritech
which justify a different outcome.
First, the Hybritech Court found that the inventor’s (Dr. David’s) January, 1979,
notebook provided a detailed description of a nylon apparatus which could be used for
performing a sandwich assay using monoclonal antibodies. Hybritech, 802 F.2d at
1377, 231 USPQ at 88. The Court further found that the notebook described
the procedure for detecting an antibody “(a-x)” to an antigen “(x)” complete with
diagrams and text, both illuminated by Dr. David at trial. The notebook further
states, “Alternatively, if one wished to quantitate an antigen, y, the identical
procedure would be followed, except that reagents would be reversed, i.e., the
reaction would be:” and there follows a clear illustration of an antibody attached
to a solid carrier reacting with an antigen to form a complex, and that complex
reacting with a second labelled [sic, labeled] antibody. The notebook was signed
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