Interference 102,728
Moreover, descriptive support is especially critical in this case since Singh
acknowledges that the loop deletion mutagenesis procedure conceived by Dr. Singh
was not publicly available; i.e., it was a novel technique unknown to those skilled in the
art on December 1, 1982. Thus, we find an order for only one of two oligonucleotides
needed to perform the referenced procedure, and an uncorroborated notation which
generically refers to any method of in-frame deletion, insufficient to corroborate Dr.
Singh’s conception of “a definite and permanent idea of the complete and operative
invention, as it is thereafter to be applied in practice.” Burroughs Wellcome Co. v. Barr
Laboratories, Inc., 40 F.3d at 1228, 32 USPQ2d at 1919.
Second, although the laboratory notebooks in Hybritech were not witnessed
contemporaneously, they were nevertheless witnessed within a few months to one year
of their writing; i.e., by May, 1980. Since the Court found that the other researchers in
the field (La Jolla Cancer Research Foundation) could not demonstrate a prima facie
reduction to practice before Hybritech’s August 4, 1980, filing date, this meant that
Hybritech’s laboratory notebooks were witnessed before the critical date. Thus, the
date was not critical in Hybritech; here it is.
Accordingly, in view of the foregoing, unlike Hybritech, we find Dr. Singh’s
uncorroborated notation in his laboratory notebook (SX 3, Bates No. 126), insufficient to
establish his conception of a specific and settled plan to perform the novel loop deletion
technique using both the 24-mer and the LAC primer. Burroughs Wellcome Co. v. Barr
Laboratories, Inc., 40 F.3d at 1228, 32 USPQ2d at 1919.
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