Interference No. 104,544 Paper149
McDonald v. Miyazaki Page 28
A. I'm kind of trying to figure out what you're asking me. I'm not
sure - - Repeat the question.
Q. I'll ask it again. Did you ever test the biological activity of a C
terminal fragment of TPO as that term is defined at column 7 of
your 666 patent? That is, [the] C-terminal fragment or domain
[that] encompasses residues 154 to 332. Did you ever test that
material?
A. I'm not going - - I'll say it this way: Not to my knowledge. But let me
say, I did test a lot of materials from Zymogenetics and also from
Genentech in my lab. And it is possible that they sent me that for
testing.
0. Before April 1996, when you signed this declaration?
A. Yes.
0. And do you have any documents that you've attached to any
document you've submitted in this interference that support that?
A. I've got a basement full of documents, mouse assays. I've
worked -
0. Dr. McDonald, documents that you have submitted. Documents
that you have submitted, not documents that you have.
A. I don't think we have, no.
[811 McDonald argues that any misrepresentation in the declaration is immaterial because
the claims would have also been allowed if the declaration had said TSF was the N
terminal f ragment plus a bit of the C-terminal f ragment (Paper 112 at 9).
McDonald's argument is implausible since the claims recite distinct fragments
with different sequences. A showing of prior invention must be consistent with what is
being claimed or it is meaningless. The examiner specifically relied on the showing as
it regarded the C-terminal fragment.
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