Interference No. 104,241
the count actually possess a practical utility. The question
before us is whether or not Jeon et al.'s showing proves that
Jeon et al. appreciated or recognized a utility for a compound
within the count at a date before Cupps et al.'s effective
filing date.
We also agree with Cupps et al. that Jeon et al. have
simply failed to establish why the evidence now presented by
them was not earlier presented. Specifically, Jeon et al.
have failed to establish that the newly presented evidence was
not available to them when their original showing was
proffered. Indeed, Jeon's declaration filed with the
supplemental evidence alleges that the NMR and Mass
Spectrometry data submitted as Exhibits 1, 2 and 3 were
performed before Cupps et al.'s effective filing date.
Therefore, there is no valid reason for why such evidence was
not included with Jeon et al.'s original showing. The same
can be said for Jeon et al.'s supplemental evidence of
practical utility for the compound allegedly synthesized by
Jeon as represented by Exhibits 6, 7 and 8 of the supplemental
showing.
Contrary to Jeon et al.'s argument that we should
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