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
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