Interference No. 104,745
However, Dr. Burlingame did not explain when these other lasers were made available to
Talrose and Fred, which leaves open the possibility that they were not obtained until after the
broken laser was repaired by Laser Science and returned to UCSF in February 1998.
For the foregoing reasons, we hold that it was reasonable for Laiko to decide to obtain an
estimate of the cost of repairing the laser, with the result that Dr. Baldwin's 26 November 1997
repair inquiry to Laser Science and the subsequent shipment of the laser from UCSF to the Laser
Science facility (located in Massachusetts), which necessarily occurred prior to Laser Science's
19 December 1997 repair estimate, are sufficient to establish that reasonable diligence toward an
actual reduction to practice of the AP-MALDI invention began just prior to Bai's 19 December
1997 conception date.
Inasmuch as 19 December was a Friday, Dr. Burlingame's above-noted e-mail to Dr.
Baldwin on 23 December (Tuesday) authorizing the laser repair was reasonably prompt.30 The
UCSF Mass Spectrometry Facility was closed on 24 December (Wednesday), 25 December
(Thursday), 27 December (Saturday), 28 December (Sunday), 31 December (Wednesday), and
1 January (Thursday). Baldwin Decl. (LX 1074) ¶ 52. In addition, Dr. Baldwin, to whom Dr.
Burlingame's authorization to proceed with laser repair apparently was directed, did not work on
26 December, the British holiday of "Boxing Day." Baldwin Depo., LR 290, ll. 11-14. Under
these circumstances, it was reasonable for Dr. Baldwin to wait until 2 January (Friday) to
30 Dr. Burlingame's testimony that he "would be amazed" if Ms. Schwartz did not forward the
approval to Laser Science on 23 December, Burlingame Depo., LR 400, l. 17 to LR 401, l. 9, is
unsupported by her declaration testimony (LX 1062) and contradicted by Denny's testimony,
both discussed infra.
- 51 -
Page: Previous 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 Next
Last modified: November 3, 2007