Interference Nos. 103,882, 103,933, and 104,228 Consolidated Judgment
Gregory v. Tsui et al. Page 9
41. We take administrative notice that Cell indicates that it is a highly selective
journal.13
42. The Cell article explains how the introduction of three silent14 mutations cured the
problem of toxicity in E. coli.
43. In its opposition, Tsui provides a host of strategies for solving the problems with
producing full-length CFTR cDNA in E. coli (Paper No. 145 at 9-10).
44. Tsui provided the declaration15 of Peter N. Ray, an employee of the Hospital for
Sick Children, which we understand to be affiliated with a Tsui real party-in-interest, HSC
Research Development Corporation.
45. Dr. Ray points (1001', ¶3) to the Tsui disclosure that in screening an E. coli based
library of cDNA clones, fewer clones were detected than expected, leading the inventors to state
"it seemed probable that the clones that contained aberrant structures were preferentially retained
while the proper clones were lost during propagation" (1042 at 31:9-15). From this, Dr. Ray
concludes that one skilled in the art would have recognized the problem of E. coli host cell
incompatibility.
46. Dr. Ray further notes (1001', ¶4) that Tsui identifies methods of propagating
unstable DNA (1042 at 20:14-24).
13 http://www.cell.com/misc/authors.shtml (visited 19 Dec. 2001) (copy attached), stating, in part:
Cell publishes reports of novel results in any area of experimental biology. The work should be not
only of unusual significance within its field but also of interest to researchers outside the immediate
area.
14 Silent in the sense that changes in the nucleotide did not change the amino acid that was encoded.
15 "Tsui Declaration Exhibit 1001" (1001'). This choice of numbering is unfortunate since there are now two
Tsui exhibits numbered 1001. See 933 Paper No. 66, § 39, for guidance on numbering exhibits. Gregory moved to
suppress this exhibit (Paper No. 161).
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