Interference 102,728
by Dr. David on January 4, 1979, and witnessed and signed on January 30 of the
same year by Dr. Curry, the first cell biologist hired at Hybritech to set up the
hybridoma production program [emphases added].
The Court found the inventor’s testimony was corroborated by later notebook
entries which disclosed experimental data such as counts per minute of the labeled
antibody (August, 1979), and results confirmed by a dose response curve (September
21, 1979).
In our view, an order for one oligonucleotide (the 24-mer) and a single notation
(“oligonucleotide for making in-frame deletion of "pre-IFN-D junction”), in Dr. Singh’s
notebook are not equivalent to the descriptive level found by the Court in Hybritech
when it stated that conception may be found on the basis of an inventor’s unwitnessed
notebooks. Here, in Dr. Singh’s notebooks, we find only an order for a 24-mer (one of
two oligonucleotides needed to perform loop deletion mutagenesis) and a notation
which indicates a goal that Dr. Singh hopes to achieve using the 24-mer, not a game
plan for its (the 24-mer) use. A Hybritech equivalent to Dr. Singh’s order for the 24-mer
and notation as to its intended use, would be if the inventors in Hybritech only provided
an order for one reagent, such as a monoclonal antibody, and a notation in a notebook
stating “antibody for use in an immunoassay.” Had the Hybritech inventors then
appeared at trial with complete diagrams and text of the sandwich assay which was
actually performed, we venture to say that the outcome would have been different -- as
it should be here.
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