Indeed, Enzo's expert explained that for one of skill in the art to be comfortable that a particular polynucleotide would work as a probe, "they would need to actually make the compound and test it in a hybridization experiment, which they would have been dissuaded from doing because of Ward." J.A. 8454 p. 150 ll. 8-15 (Sherman deposition) (discussing a polynucleotide labeled at the terminal phosphate and using carbodiimide chemistry and biotin); see also J.A. 8456 ll. 3-11 (Sherman deposition) ("Q: . . . But if they had been motivated to make this probe, non-Ward labeled probe, your view is that they would have to make it and test it in order to predict whether it would actually hybridize as of June 1982, right? A: Well, they would have to make it and assure against the prevailing wisdom that it could work."); J.A. 8454-55 p. 150 l. 17-p. 151 l. 18 (Sherman deposition). Given such unpredictability in the art, and considering the testimony of Enzo's expert that each labeled polynucleotide would need to be tested to determine whether it is hybridizable and detectable upon hybridization, the breadth of the claims here is particularly concerning in the enablement inquiry.
Indeed, Enzo’s expert explained that for one of skill in the art to be comfortable that a particular polynucleotide would work as a probe, "they would need to actually make the compound and test it in a hybridization experiment, which they would have been dissuaded from doing because of Ward." J.A. 8454 p. 150 ll. 8–15 (Sherman deposition) (discussing a polynucleotide labeled at the terminal phosphate and using carbodiimide chemistry and biotin); see also J.A. 8456 ll. 3–11 (Sherman deposition) ("Q: ... But if they had been motivated to make this probe, non-Ward labeled probe, your view is that they would have to make it and test it in order to predict whether it would actually hybridize as of June 1982, right? A: Well, they would have to make it and assure against the prevailing wisdom that it could work."); J.A. 8454–55 p. 150 l. 17–p. 151 l. 18 (Sherman deposition). Given such unpredictability in the art, and considering the testimony of Enzo’s expert that each labeled polynucleotide would need to be tested to determine whether it is hybridizable and detectable upon hybridization, the breadth of the claims here is particularly concerning in the enablement inquiry.
After the picture was taken, Craig and Keller shook hands. (Doc. 70-2 at 55 p. 150). Craig does not have a problem with Ballard or Keller.
That in January, 1895, there were born to the ewes of said band of two thousand sheep one thousand lambs. That in May, 1894, Rosenthal and Kutner brought suit in justice's court in the county of Madera against said Lujea, the mortgagor, and procured a writ of attachment to be issued, under which the defendant in this action, a constable, attached three hundred and twenty of said lambs, and afterward sold the same for the [55 P. 150] sum of two hundred and eighty-eight dollars; and this action is prosecuted to recover from the defendant (said constable) the value of said three hundred and twenty lambs so attached and sold, and damages; and on the facts so found the court gave judgment for the defendant. Several grounds are urged by respondent in support of the judgment, and each ground is combatted and elaborately argued on behalf of appellant.