Interference 102,728
inventor. That is, an inventor could always have been doing something else, but
instead, performed Experiment X, ordered reagent Y, etc. If we were to apply this
method of reasoning, it would mean that whenever any work of an inventor is offered
that it should be accepted as evidence of conception, diligence, etc., because the
inventor could have been doing something else. It would be impossible to determine
priority, or resolve other issues, if each time we considered what the inventors could
have otherwise have been doing, as opposed to what they did do? In our view, our
fact-finding duty is best discharged when we consider what an inventor has done, and
based on the evidence provided, determine whether a party has met its burden of proof
for the issue at hand.
To that end, when we consider the 24-mer itself, and not what oligonucleotides
could have been ordered, we agree with Brake, that if Dr. Singh wanted an
oligonucleotide which was complementary to the “sequence at the junction” (SX 3,
Bates No. 108), for any purpose, he had a choice of only one oligonucleotide due to
natural base-pairing laws. Paper No. 190, p. 66. We are not aware of any other
possibilities.
As to Singh’s reliance on the testimony of Dr. Singh (SR 564, para. 47), Mr. Ng
(SR 478, para. 11), and Mr. Vasser (SR 1059, para. 4), to support its position with
respect to the possible number of oligonucleotides Dr. Singh could have ordered, we
direct attention to our discussions of these declarations above. Contrary to Singh’s
argument, we find no mention of the mathematical calculation, or of the 24-mer being
one of 2.8 x 1014 possible 24-mers that Dr. Singh could have ordered. Thus, on the
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