Interference No. 104,544 Paper149
McDonald v. Miyazaki Page 29
[821 We find clear and convincing evidence that during the prosecution that led to the
issuance of the 666 patent, Dr. McDonald knew or should have known that references
to a G-terminal fragment in his declaration would be understood by an examiner to
mean at least amino acids 154-332 of the disclosed de Sauvage sequence, as
explained in the specification.
[83] We find clear and convincing evidence that when Dr. McDonald submitted a declaration
showing data for TSF and purporting to show data for a preparation containing both N
terminal and C-terminal fragments of TPO that an examiner would have understood
references to TSF and C terminus to mean at least amino acids 154-332 of the
disclosed de Sauvage sequence.
[84] We find clear and convincing evidence that when the declaration was submitted, Dr.
McDonald did not know what the sequence of TSIF was or whether it was the same as
the de Sauvage sequence or any fragment of that sequence.
[85] We find clear and convincing evidence that Dr. McDonald did not think the tested
preparation contained the entire C-terminal fragment as that fragment is described in
the 666 patent disclosure. We note in particular his testimony that the test preparation
had only "little bit of the C", which we understand to mean a small portion of the C
terminus immediately following the N terminus sequence.
[86] We find clear and convincing evidence that Dr. McDonald was aware that his
representations about testing the T terminus" was not correct but that he chose not to
correct the record.
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