Interference No. 102,408
sample no. 12459B-47A or 12459B-47B. According to the record 22
in this interference, sample no. 12459B-47B was assigned CL
number 285605 (CR228). However, the notation "285605 (12459B
47A)" appears to refer to sample no. 12459B-47A (CR292). 23
Junior party Child fails to explain this inconsistency.
Assuming arguendo that compound "285605 (12459B 47A)"
does fall within the scope of the count, the evidence relied
on by junior party Child fails to establish that the inventors
knew, prior to the critical date, that the compound had
utility as an anti-cancer agent. See KB25-26. See Estee
Lauder Inc., 129 F.2d at 594-95, 44 USPQ2d at 1615 ("when
testing is necessary to establish utility, there must be
recognition and appreciation that the tests were successful
for reduction to practice to occur").
First, Kolar argues that the protocol for the "P 388
22As discussed above, the product labeled "A" on page 47
of notebook 12459B is described as a beige solid having a
melting point of 262E (CR365). On the other hand, the product
labeled "B" on page 47 of notebook 12459B is described as
bright yellow crystals having a melting point of 270-273E
(CR365).
23Exhibit C attached to the Durr declaration which appears
to be a computer generated report of the results of a P 388
test includes data for compound "285605-47A" (CR293).
24
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