Interference No. 104,544 Paper-149
McDonald v. Miyazaki Page 13
[421 In the present case, McDonald was on notice that the lack of better evidence on the
relationship between TSF and the claimed polypeptides was a source of concern for the
Board (Paper 95 at 15 and 19-22).
[43] McDonald argues (Paper 141 at 18 n.2) that sequencing TSF is well within the ordinary
skill of the art.
McDonald is the party with the burden of proof to establish his date of conception
for the invention of the counts. McDonald has failed to provide a preponderance of
evidence linking his proofs regarding TSF conceptions with the TPO polypeptide
fragments of the count. Consequently, we find no support for McDonald's contention
that he conceived of the inventions of the counts prior to Miyazaki's earliest accorded
benefit date.
Reduction to practice
[44] According to McDonald (Paper 141 at 5-6, Fact 13):
Affidavits of Rose Clift, Marilyn Cottrell, and Ted McDonald establish that
Ted McDonald's conception of the use of an active fragment of TPO to
treat thrombocytopenia in a patient was reduced to practice prior to
February 14, 1994.
(a) McDonald Affidavit 4 of Ted P. McDonald, pages 37 to 45 of the
record,
(b) McDonald Affidavit of Rose Clift, pages 19 to 27 of the record, and
(c) McDonald Affidavit of Marilyn Cottrell, pages 28 to 36 of the record.
The brief cites to 27 pages of the record with little or no guidance as to which
facts we should note, This form of briefing is an invitation to the Board to become
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