Oocyte. Defendants assert that the patent distinguishes between enucleated “oocytes” and nuclear-transferred “embryos,” both in its language and by the specifications’ exclusive reference to the activation of enucleated oocytes, but a reading of the patent does not bear out defendants’ assertion. The inventors do not use “oocyte” to refer only to a pre-fused cell and nothing in the patent suggests that the term should be read in this restricted manner. The inventors define oocyte in three ways: 1) as developed from an oogonium; 2) as a structure able to enter meiosis; and 3) a structure able to reach metaphase II of meiosis. Throughout the patent, the inventors use the term oocyte broadly to refer to cells that are enucleated and to cells that are transferred and fused. Because the inventors did not adopt the distinction between embryo and oocyte that defendants might wish they had and because nothing in the patent indicates that they intended to make such a distinction, it is not possible to infer from the patent language that the patented method refers only to a cloning method in which activation precedes fusion. Except when the inventor uses a special meaning for a word, a court must give the term its ordinary meaning. If there were any doubt that scientists such as the inventors of the ‘720 patent use the term oocyte as well as embryo to refer to the product of a recipient, enucleated oocyte and a donor cell, it would be resolved by the evidence that other scientists, including defendant Xxxxx, used “oocyte” in this manner in scientific papers they wrote as recently as last year, as well as in others they wrote before the application for the ‘720 patent was filed in 1993. Although I do not believe that the interpretation is in doubt and am not relying on the evidence in the scientific papers, it would be permissible to do so to resolve any remaining ambiguity in the use of the term. For that reason, I am denying defendants’ motion to strike all references to extrinsic evidence from plaintiff’s brief. See Vitronics Corp., 90 F.3d at 1583 (extrinsic evidence may be considered, if needed, to assist in determining meaning or scope of technical terms after court has looked to language of claims, specification and prosecution history). Defendants are correct that the ‘720 patent specification describes a cloning process in which activation precedes fusion, but incorrect in arguing from this that the patent is limited to the activation of pre-fused, enucleated oocyte...
