Interference 102,728
definite and permanent idea of the complete and operative invention”; i.e., that Dr.
Singh had a definite and permanent realization of the loop deletion method of making
an “n=0” DNA construct within the scope of Count 1, on December 1, 1982. Burroughs
Wellcome Co. v. Barr Laboratories Inc., 40 F.3d at 1228, 32 USPQ2d at 1919; Oka
v. Youssefyeh, 849 F.2d at 581, 7 USPQ2d at 1171.
First, we agree with Brake that Singh has not pointed to any evidence which
demonstrates when the loop deletion mutagenesis technique was developed at
Genentech. Paper No. 190, p. 59. On the record before us, we seem to have only
argument of counsel that the method was available, and known to Dr. Singh, in late
1982. As discussed above, we accord arguments of counsel little, or no, evidentiary
weight. 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.
Second, the loop deletion mutagenesis procedure requires the use of two unique
oligonucleotides; one which is complementary to the region which is to be mutagenized
and one which is complementary to a region upstream of the site of mutagenesis (the
“LAC” primer). SX 53, p. 188, col. 2, last para. At best, Singh has established that Dr.
Singh may have been in possession of one of two oligonucleotides which ultimately
would be required to perform loop deletion mutagenesis. Singh has not pointed to any
evidence which demonstrates that Dr. Singh contemplated or knew of the need for the
second oligonucleotide prior to January 12, 1983. To that end, our only finding of Dr.
Singh’s awareness of the need for the “LAC” primer in the loop deletion mutagenesis
procedure is a notation in his laboratory notebook (SX 3) at Bates No. 136, dated
72
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