Interference No. 104,745
13. The chromatograms of Bai Exhibit 2072 show a repeat pattern of signal every 50
milliseconds wherein the signals are often very intense with counts as great as 1.5
x 106. These signals indicated that ions were generated by the described AP-
MALDI apparatus and detected by the mass spectrometer. . . . Because
bradykinin is a peptide that would be detected at 1061 m/z, this data [in BX 2072]
is consistent with the detection of bradykinin ions. [Reinecke's italics.]
14. . . . The chromatograms of Bai Exhibit 2074 showed no signal on a scale 1000
times larger than that shown in Bai Exhibit 2072 and thereby indicated that no
ions were detected. Because the signal events depicted in Bai Exhibit 2072 were
substantially greater than the patterns associated with background in Bai Exhibit
2074, these chromatograms demonstrated that the signal events depicted in Bai
Exhibit 2074 were due to the analyte ions as opposed to noise or some other
artifact. Thus, these chromatograms indicated that the AP-MALDI apparatus was
successfully generating analyte ions.
Reinecke Decl. (BX 2042) ¶¶ 12-14. Testimony to the same effect was given by James Bertsch,
who from 24 December 1997 to 18 January 1998 was part of HP's Mass Spectrometry research
and development group. Bertsch Decl. (BX 2085) ¶¶ 4-5, 11-13. Neither of these witnesses
was cross-examined by Laiko about this or any other part of their declaration testimony.
Instead, Laiko argues that the chromatograms are insufficient to demonstrate the
detection of bradykinin ions for the reasons given in paragraphs 67-71 of Dr. Baldwin's
declaration testimony (LX 1074). Although this declaration is entitled "DECLARATION OF
DR. MICHAEL A. BALDWIN (In Support of Laiko's Priority Case)," paragraphs 67-78 appear
under the heading "Bai's Alleged Reduction to Practice" and thus constitute "rebuttal" testimony
on behalf of Laiko. See 37 CFR § 1.601(e)("Case-in-rebuttal means that portion of a party's case
where the party presents evidence in rebuttal to the case-in-chief of another party."). Bai
responded to Dr. Baldwin's rebuttal testimony by filing a "DECLARATION OF STEVEN M.
FISCHER (Rebuttal Evidence)" (BX 2118) and a "DECLARATION OF DR. JOHN B. FENN
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