BAI et al v. LAIKO et al - Page 33




                Interference No. 104,745                                                                                                 

                mass spectrometer.  Such individual spikes could be responsible for the difference in signals of                         
                Bai's 1061 m/z and 1900 m/z chromatograms."  Id.  These reasons, however,  are highly                                    
                speculative, as Dr. Baldwin admitted when he stated: "I am not aware of any basis for others in                          
                the art to determine, whether sensitivity changes in the mass spectrometer or generation of                              
                spurious ions  (or some other phenomenon) may be responsible for the difference in signal                                
                between Bai's 1061 m/z chromatogram and 1900 m/z chromatogram."  Id.  In  the absence of                                 
                documentary evidence or test results confirming and quantifying these alternative explanations                           
                for the differences between the 1061 m/z and 1900 m/z chromatographs, they are entitled to little                        
                weight.  See Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 294, 227                              
                USPQ 657, 665 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017 (1986)("Lack of factual support for                          
                expert opinion going to factual determinations . . . may render the testimony of little probative                        
                value in a validity determination.  Cf. In re Altenpohl, 500 F.2d 1151, 1158, 183 USPQ 38, 44                            
                (CCPA 1974).").  Moreover, these alternative theories fail to adequately address the fact that the                       
                1061 m/z chromatograph shows an apparent synchronism between ion detection and the firing of                             
                the laser.                                                                                                               
                        For the foregoing reasons, we hold that the 23 December 1997 chromatograms are                                   
                sufficient to prove, by a preponderance of the evidence, that on that date the AP-MALDI                                  
                apparatus generated bradykinin 1061 m/z ions and transported them to the LC/MSD instrument,                              
                where they were detected and counted.  Furthermore, in the absence of any persuasive evidence                            
                to the contrary we hold that it is reasonable for Bai to assume that the AP-MALDI apparatus was                          
                also capable of generating analyte ions having other mass-to-charge ratios.  Dr. Baldwin's above-                        

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