Interference 102,760
. . . . .
. . . I think I had earlier conversations in terms
of agreeing to the design of the pilot study or how many
patients and what the time frame would be for the pilot
study. . . . I had a part to oversee and make sure that
the pilot study had some integrity to it . . . .
(RD, p. 61; Deposition of Jeffrey L. Schwimmer, p. 48, l. 1-
17).
Schwimmer’s testimony combined with Rosekind’s description of
the amount and kind of experimentation which actually was
performed as part of his clinical study (RD, pp. 73-78;
Declaration of Mark R. Rosekind) and Yost’s description of the
same work (RD, pp. 79-84; Declaration of Doug Yost),
reasonably support a finding that undue experimentation would
have been required to practice the invention of Claims 1, 2,
6, 7 and 13 of Application 07/695,325 without the experimental
contributions of Rosekind and Schwimmer. Moreover, on page 7
of the February 7, 1990 memorandum from R.P. Ryan/R.E.
Carnahan to I Jarkovsky entitled “Buspirone in Sleep Apnea
Patent Application: Inventorship/Ownership,” it is observed
that “reduction to practice may not be at all routine and
easily accomplished”
(RD, p. 105).
31
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