Interference No. 103378
conceived “would be useful as inhibitors of 5-lipoxygenase based on my previous
experience with the related cyclopropyl N-hydroxyureas which are useful for this
purpose.” (BR 7-8, ¶ 9) Kreft opined that the structural similarity of the N-
hydroxyureas and hydroxamic acid compounds of the count with N-hydroxyureas
and hydroxamic acids known as of that time, as evidenced by documents, BX39-
56, would establish that as of November 14, 1990, it was “reasonably certain” to
one of skill in the relevant art that N-hydroxyureas and hydroxamic acids of the
count (all being hydrophobic) would inhibit 5-LO. (BR 451, ¶¶ 3-4). Kreft said:
[T]he pharmacophore of the N-hydroxyureas and hydroxamic acids, i.e.
the part of the molecule which is responsible for 5-LO inhibitory activity, is
the N-hydroxyurea or hydroxamic acid portion of the molecule which is
common to all the hydrophobic 5-LO inhibitory compounds discussed
herein. (BR 453, ¶ 6)
Ikeda position
Ikeda argue that the Brooks evidence is not sufficient to establish utility of
the prepared compound, A-79935. It is Ikeda’s position that testing was
necessary because a practical utility for A-79935 cannot be “foretold with
certainty” based on structural similarity of A-79935 and other N-hydroxyurea and
hydroxamic acid compounds, known to be 5-LO’s.
Burden of Proof
Brooks, as the junior party whose application was copending with the
Ikeda application, bear the burden to establish priority by a preponderance of the
evidence. Bosies v. Benedict, 27 F.3d 539, 541-42, 30 USPQ2d 1862, 1864
(Fed. Cir. 1994).
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