Interference 102,728
Evidence in the record supports this calculation: (1) the oligonucleotide is
indeed 24 units in length SX3:#126, and (2) 4 to the 24th power is indeed 2.8
times 1014.
Evidence supports the fact that it was possible that Dr. Singh could have
ordered any one of these many different 24 mers: (1) Dr. Singh’s testimony is
that he prepared the synthetic DNA request (Singh SR564:47), and (2) Mr. Ng
and Mr. Vasser filled the request ordered by Dr. Singh as well as numerous other
requests made by him at other times. Ng SR478:11, Vasser SR1059:4. There is
nothing in the record that suggests that Dr. Singh was not free to order any DNA
he wanted.
The number of units (nucleotides) in an oligonucleotide and a mathematical
calculation generated therefrom are not evidence that the 24-mer is one of 2.8 X 1014
possible oligonucleotides Dr. Singh could have ordered. Rather, we find that the
calculation is nothing more than unsupported argument of counsel to which we accord,
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.
Moreover, we find Singh’s argument that we should consider all of the possible
oligonucleotides that Dr. Singh could have ordered to be misdirected. If we go down
that road, then we should also consider that Dr. Singh could have ordered a 20-mer, a
30-mer, and an oligonucleotide of any other length above, below and in between, and
include these oligonucleotides in the calculation. We would soon find that there would
be nearly an infinite number of possibilities as to what Dr. Singh could have done.
However, this method of reasoning could be applied in every case and with every
for any reason, there was only one oligonucleotide possible.
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