Interference No. 104,101
Page 22
party, Lilly does not allege an earlier conception coupled with diligence to its later constructive
reduction to practice of September 20, 1994. Rather, Lilly alleges an earlier actual reduction to
practice.
As discussed above, Lilly has submitted numerous alleged reductions to practice that are
said to fall within the scope of the count. (See, Paper No. 202, Appendix B1 “Examples of
compounds made by Dave Jones that fall within the scope of Count 2,” and Appendix B2
“Examples of Compounds made, used or manipulated by other named inventors of the Lilly
Application that fall within the scope of Count 2 ”). While Lilly has submitted evidence
regarding the alleged conception and manufacture for many of these compounds, Lilly has failed
to sufficiently demonstrate that at least one of the inventors understood that the various
compounds worked for their intended purpose. Specifically, with the exception of Lilly
Compounds 311583 and 125001, Lilly has failed to sufficiently identify evidence that the
allegedly manufactured compounds were tested to establish a practical, recognized utility. For
example, under the argument section of Lilly’s Main Brief at Final Hearing there is only one
heading directed to the usefulness of the allegedly manufactured compounds. (Paper No. 202,
p. iii, heading no. VI. 6.). Moreover, this “usefulness” section merely details Mr. Magee’s
analysis of Lilly Compound No. 311583 and does not mention the testing of compound 125001
or any other allegedly manufactured compound. (Paper No. 202, pp. 37-38).
As to compound 125001, Lilly has failed to direct our attention to the specific structure of
the compound. As such, we focus our attention on Lilly compound 311583 as Lilly has alleged
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