Interference 104,002
to practice. Cooper v. Goldfarb, 154 F.3d at 1327, 47 USPQ2d at 1901; Price v.
Symsek, 988 F.2d at 1190, 26 USPQ2d at 1033.
As indicated above, the count is directed to a polynucleotide comprising a
nucleotide sequence which encodes a polypeptide having a specific amino acid
sequence; viz, amino acid residues 1 to 65 of Li SEQ ID NO:2, or amino acid residues
25 to 93 of Godiska SEQ ID NO:2, or the complement thereof. To that end, we point
out that our appellate reviewing court has held that given the complex nature of
nucleotide and amino acid sequences, conception does not occur until there has been
a reduction to practice. See, e.g., Amgen, Inc. v. Chugai Pharmaceutical Co., 927
F.2d at 1206, 18 USPQ2d at 1613. That is, with respect to determining priority of
invention of a gene, the court has held that conception and reduction to practice occur
simultaneously. Id. We apply this rule of law to the case before us. Therefore, in order
to demonstrate conception of an invention within the scope of the count, Godiska must
provide evidence that its inventors envisioned both a nucleotide and an amino acid
sequence having the specific chemical composition set forth in the count.
Here, we find that Godiska isolated and sequenced, inter alia, a polynucleotide
comprising a nucleotide sequence which encodes amino acid residues 25 to 93 of
Godiska SEQ ID NO:2 on December 15, 1994. On said date, Ms. Christa Wood gave
Dr. Godiska the results of the nucleotide sequencing experiments she had performed
on numerous cDNA clones isolated from a human macrophage cDNA library. GX 1037,
pp. 98-110. However, on the facts of this case, the mere determination of the
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