Interference Nos. 103,882, 103,933, and 104,228 Consolidated Judgment
Gregory v. Tsui et al. Page 7
32. Tsui points to its possession and deposit of three cDNA clones that collectively
span the entire CFTR DNA sequence. Tsui does not, however, disclose a manner of making a
continuous CFTR cDNA. Tsui does not explain how it would use separate overlapping clones to
make a vector; rather, it appears to presume the availability of the full-length cDNA.
33. The 609 specification discloses many examples of errors creeping into the making
of cDNA clones no matter what approach Tsui tried (1042 at 30:16-29, 30:35-31:1, 31:9-18,
32:12-13, and 36:29-35).
34. The 609 application shows that Tsui considered various causes for cloning
problems (1042 at 20:14-24 and 33:25-28), but Tsui's opposition does not explain how the
disclosure itself would have pointed one skilled in the art to latent E. coli toxicity as the cause or
silent mutations in the cDNA as a likely solution.
35. The science journal Nature published a Gregory article in September 1990, more
than one year after the filing date of the 609 application, identifying bacterial toxicity of full-
length CFTR cDNA as a problem and providing a solution (using a low copy number vector)
(4016).8
36. We take administrative notice that Nature indicates that it is a highly selective
journal.9
8 R.J. Gregory et al., "Expression and characterization of the cystic fibrosis transmembrane conductance
regulator", 347 Nature 382, 382 (27 Sep. 1990). Gregory exhibits are all numbered in the four thousands.
9 http://www.nature.com/nature/submit/get_published/index.html (visited 19 Dec. 2001) (copy attached),
stating, in part:
The criteria for publication of scientific papers in Nature are that they:
• report original scientific research (the main results and conclusions must not have been published or
submitted elsewhere; see Guide to Authors)
• are of outstanding scientific importance
(continued...)
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