surprising or unexpected. That two 1,3,5-oxadiazines, S19 and S20, were merely equivalent or in
some instances less effective than compounds that do not appear to be specifically depicted or explicitly
identified by the ‘146 patent does not alter our conclusion. Specifically, Maienfisch has provided
convincing evidance that its claimed 1,3,5-oxadiazines would not have been obvious to one skilled in
the art given the teachings of the JP ‘943 reference.
E. Shiokawa Preliminary Motion 13 to Suppress Maienfisch’s Exhibit 1001
Shiokawa Preliminary Motion 13 requests that the Declaration of Dr. Fredrick E. Ziegler,
Maienfisch Exhibit 1001, be suppressed. According to Shiokawa, the purpose of Dr. Zielger’s
declaration was to support Maienfisch’s arguments in its first and only preliminary motion. (Shiokawa
Preliminary Motion 13, Paper No. 102, p. 15). Shiokawa alleges that Dr. Ziegler has demonstrated a
level of skill in the relevant field of heterocyclic chemistry that falls below that of one of ordinary skill in
the art.
In rendering our decision on preliminary motions, we have not found it necessary to rely upon
the declaration testimony of Dr. Ziegler. Accordingly, the motion to suppress Dr. Ziegler’s declaration
testimony (MX 1001) is dismissed as moot.
F. Shiokawa Preliminary Motion 14 to Suppress Maienfisch’s Exhibits 1005, 1006 and
Paragraphs 48-49 of Exhibit 1001
Shiokawa Preliminary Motion 14 requests that Maienfisch Exhibits 1005 and 1006 and
paragraphs 48 and 49 of Maienfisch Exhibit 1001, the Declaration of Dr. Fredrick E. Ziegler, be
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