Interference 102,728
record before us, we find Singh’s contention that the 24-mer is one of 2.8 x 1014
possible 24-mers that Singh could have ordered to be attorney argument. As discussed
above, we accord such argument little, if 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.
d. No other substantial use for the 24-mer
Singh argues (Paper No. 180, p. 20) that :
... Because of the unique DNA sequence of the 24-mer oligonucleotide and the
M13 template, there is no other use for these materials. The first four codons
are from the alpha factor (leu-asp-ly [sic, lys]-arg), and the next four codons are
from the interferon (cys-asp-leu-pro), and the target sequence for his deletion
mutagenesis is present on the single strand template. SX3:#108, #126, #131-
132[.] The “no other use” test is a more stringent test than required.
Here, Singh points to several pages in Dr. Singh’s laboratory notebook to
support its position that there is no other use for the 24-mer and “the M13 template.”44
We have discussed notebook pages Bates Nos. 108 and 126, above, and we agree
that the latter page contains a DNA Synthesis Request form for the 24-mer which was
44 Singh does not explain what is meant by “the M13 template.” If we assume,
arguendo, that by “the M13 template,” Singh means the published M13mp8 vector
shown on Bates No. 131, then it appears from the published restriction map of the M13
template that it is not unique to Dr. Singh’s work concerning loop deletion mutagenesis.
Rather, M13 is a well-known vector for cloning and sequencing DNA. Alternatively, if
we assume, arguendo, that by “the M13 template” Singh means that Dr. Singh inserted
the same DNA sequence encoding the Saccharomyces " factor promoter, leader
sequence, spacer sequence and human interferon D contained in p60 into M13mp8,
this simply means that he has placed said DNA in a different vector. Absent evidence
to the contrary, this does not indicate or suggest that there is no other use for “the M13
template” other than for loop deletion mutagenesis, any more than would the presence
of said DNA in another vector, or p60 itself.
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