Interference No. 104,544 Paper149
McDonald v. Miyazaki Page 7
junior party's own reduction to practice. Griffin v. Bertina, 285 F.3d 1029, 1032,
62 USPQ2d 1431, 1433 (Fed. Cir. 2002). McDonald always bears the ultimate burden
of proof for establishing priority over Miyazaki. This burden does not shift. Brown v.
Barbacid, 276 F.3d 1327, 1332, 61 USPQ2d 1236, 1239 (Fed. Cir. 2002).
Conception
[26] Dr. Ted P. McDonald is the sole named inventor of the claimed subject matter of the
involved 666 patent claims [1048].
McDonald argues (Paper 141 at 8) that Dr. McDonald is the first inventor of the
inventions involved in this interference, as demonstrated by the affidavits of Dr.
McDonald, Rose Clift, and Marilyn Cottrell, pointing to Fact 12.
[27] McDonald Fact 12 (Paper 141 at 5) states:
Affidavits of Rose Clift, Marilyn Cottrell, and Ted McDonald
establish that Ted McDonald conceived of the use of an active fragment
of TPO to treat thrombocytopenia in a patient prior to February 14, 1994.
(a) McDonald Affidavit 4 of Ted P. McDonald, paragraph 2, page 38 of
the record [Paper 147 6],
(b) paragraph 23 of McDonald Affidavit of Rose Clift, page 26 of the
record, and
(c) paragraph 23 of McDonald Affidavit of Marilyn Cottrell, page 35 of
the record.
[28] According to Dr. McDonald (Paper 147 at 38, T2):
In December 1991, 1 conceived of the idea of using TSF, an active
fragment of thrombopoietin (TPO), to treat thrombocytopenia in an animal
model of a human disease. I conceived of this idea at the time after 1
6 McDonald Record under 37 C.F.R. § 1.653.
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