BRAKE v. SINGH - Page 81




               Interference 102,728                                                                                                  
               984 F.2d at 1169, 25 USPQ2d at 1604;. Oka v. Youssefyeh, 849 F.2d at 583, 7                                           
               USPQ2d at 1171.                                                                                                       
                       Second, in Berges, the primary investigator was a member of a highly organized                                
               research team whose objective was to make the compounds of the count.  Berges v.                                      
               Gottstein, 618 F.2d at 775, 205 USPQ at 694.  As pointed out by Brake, in addition to                                 
               the highly complex reagents provided to Berges by two members of the team there was                                   
               a large body of independent corroborating evidence of Berges’ synthesis of the relevant                               
               compound.47  Paper No. 190, p. 64.  Thus, in Berges, various members of the team                                      
               testified as to having received samples of the compound [of the count] and that they                                  
               performed in vitro and in vivo tests at various stages for purposes of evaluation.  In                                
               addition, Berges’ supervisor testified that he received a “legal sample”48 of the                                     
               compound [of the count], a copy of the in vitro evaluation, and a report on the in vivo                               


                       47 The Court stated that:                                                                                     
                                       Equally relevant to the issue of corroboration of an actual reduction                         
                               to practice are the routine pathways by which knowledge of ongoing                                    
                               research was disseminated throughout the cephalosporin research team.                                 
                               Berges did not simply decide by himself to synthesize a compound from                                 
                               the available precursors received from Taggart and DeMarinis.  He was                                 
                               involved in a supervised research program directed toward [the                                        
                               compounds of the count].  Berges v. Gottstein, 681 F.2d at 775, 205                                   
                               USPQ at 695.                                                                                          
                       48 The Court found that                                                                                       
                                       A “legal sample” refers to the portion of a supposedly novel                                  
                               compound which is recorded and stored by a designated custodian at a                                  
                               SK & F depository.  An affidavit by Bacino confirms the receipt of a legal                            
                               sample of the ...[ compound of the count]...  from Berges on March 28.                                
                               Berges v. Gottstein, 681 F.2d at 773, n.1, 205 USPQ at 693, n.1.                                      
                                                                 81                                                                  





Page:  Previous  74  75  76  77  78  79  80  81  82  83  84  85  86  87  88  Next 

Last modified: November 3, 2007