Interference 102,760
practice . . .” (RD, p. 92, Declaration of Richard P. Ryan,
para. 4). Based on Schwimmer’s testimony alone (RD,
pp. 28-32; Deposition of Jeffrey L. Schwimmer, p. 15, l. 12,
to p. 19, l. 13), persons skilled in the art may reasonably
have considered the amount and kind of experimentation which
would have been required to determine whether any given drug
would be effective in the treatment of obstructive sleep apnea
to constitute undue experimentation. Rapoport has not pointed
to any evidence that undue experimentation would not have been
required to determine whether any given drug would be
effective in the treatment of obstructive sleep apnea.
To the contrary, in support of the contribution of each
of Dement, Rosekind and Schwimmer to the invention of Claims
1, 2, 6, 7 and 13, Schwimmer’s testified:
I made a trip to Stanford research to meet with Dement
and Rosekind . . . . I met with them about trying to
set up -- the possibility of setting up a research study
in sleep apnea. . . . Most importantly, the concept of
the protocol and initiating a protocol sleep research in
terms of the design, feasibility, money.
(RD, pp. 59-60; Deposition of Jeffrey L. Schwimmer, p. 46,
l. 16, to p. 47, l. 1);
[I]f you think it works -- I would recommend . . . some
pilot work and let’s see what happens . . . . If it
looks good then we can use that as leverage to do more
of a definitive study, but . . . I suggest you do some
pilot work.
30
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