Interference 102,728
declarants mention that the 24-mer is of the precise length and complementarity
needed to perform loop deletion mutagenesis.
Singh argues that the “oligonucleotide is one of 2.8 x 1014 possible 24-mers that
Dr. Singh could have ordered.”43 Paper No. 180, p. 18. According to Singh, the:
43 Singh’s argument is not clear. That is, it is not clear whether Singh intends to
argue that if Dr. Singh were to make (i) any 24-mer oligonucleotide that there are 2.8 x
1014 possible nucleotide combinations, or (ii) a 24-mer which is complementary to the
eight (8) amino acids at the junction (SX 3, Bates No. 108) that there are 2.8 x 1014
possible nucleotide combinations. We address the former argument on p. 76, wherein
we state that there is only one oligonucleotide sequence which is an exact complement
of the junction region.
However, if Singh intends to argue the latter, we point out that the mathematical
calculation wherein there are said to be four (4) possible nucleotides for all 24
nucleotides (8 codons) comprising an oligonucleotide (a 24-mer) which complements
the eight (8) amino acids at the junction (i.e., leu-asp-lys-arg-cys-asp-leu-pro), is
incorrect. Degeneracy of the genetic code does not involve each nucleotide in the
codon. The degeneracy usually occurs with the third nucleotide codon, and with the
eight (8) amino acids under consideration here, never in all three positions. For
example, if we consider the amino acid “lys” which occurs once in the series of amino
acids at the junction, and use a genetic dictionary (BX 25), we find that it is encoded by
“AAA” or “AAG.” Thus, there are only two (2) possible codons for this amino acid or,
conversely, only two codons which will complement the nucleotide sequence. However,
according to Singh’s method of calculating there would be 4 to the 3rd power (43) or 64
possibilities. We point out that of the eight (8) amino acids at the junction, “leu” and
“arg” are encoded by the greatest number of codons; i.e., “leu” and “arg” are each
encoded by six (6) different codons. For example “leu” is encoded by “TTA,” “TTG,”
“CTT,” “CTC,” “CTA” and “CTG.” However, according to Singh’s method of calculating,
“leu” (and “arg”) would be encoded by 4 to the 3rd power (43) or 64 possible codons.
Continue this faulty method of calculating for the remaining codons, and the problem
becomes greatly exaggerated, as it has been here. Thus, we find that only attorney
argument could turn a sequence of eight (8) amino acids into a sequence which is
encoded (or complemented) by 2.8 x 1014 possible oligonucleotides. Accordingly, it is
with good reason the Court has held on numerous occasions that arguments of counsel
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. While we have taken the time to point out the error in this
argument, we nevertheless adhere to our original position, i.e., if Dr. Singh wanted an
oligonucleotide which was complementary to the eight (8) amino acids at the junction,
74
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