Interference 102,760
invention which is patentable under 35 U.S.C. § 112, first
paragraph.
The evidence shows that Schwimmer at minimum contributed
to the concept of a method for treating sleep apnea comprising
administration of a therapeutically effective amount of
azapirones other than buspirone to a patient in need of such
treatment (SRR, WIA, RI 4, pp. 262). Therefore, his
contribution to an invention claimed should not be suspect.
However, the evidence also shows that Rosekind (1) contributed
only to the invention of Claims 1, 2, 6, 7 and 13, and (2)
along with Dement, contributed to the concept of a specific
effective dosage of buspirone to be given to patients having
sleep apnea at bedtime, i.e., 20 milligrams of buspirone (SRR,
WIA, RI 2, p. 259; SRR, WIA, RI 3, p. 260). Rapoport argues
that Rosekind’s contribution to the claimed invention is
entirely experimental and does not
in any way relate to the conception of an invention claimed.
Accordingly, Rapoport submits that Rosekind cannot be a joint
inventor of an invention claimed and moves for judgment that
Claims 1-13 are unpatentable under 35 U.S.C. § 102(f).
Thus, to be specific, the question presented by
Rapoport’s motion is whether Claims 1-13 of Application
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