Interference No. 104,101
Page 30
Mr. Bell’s testimony verifies that Lilly’s 311583 submission sheet is a true and accurate
copy of that contained in Lilly’s Research Records microfilm archive. Mr. Bell’s testimony,
however, does not comment upon the accuracy of the information contained within the 311583
submission sheet. In particular, Mr. Bell’s testimony fails to confirm that Mr. Cullinan
manufactured a compound having the structure depicted as Lilly compound 311583.
5. Mr. Magee’s Testimony Does Not Confirm the Identity of the Compounds
Allegedly Made by Mr. Cullinan
Mr. Magee testified that during the period of 1992 to 1994 he was an Associate Biologist
working in the In Vivo Pharmacology Laboratory of the Lilly’s Skeletal Research Division.
(Declaration of David E. Magee, EX 1156, ¶ 4). Mr. Magee testified that between August 22-26,
1992, the lab conducted an analysis of the biological activity of various compounds, including a
compound with serial number LY 125001. Further, Mr. Magee testified that between April 17-
21, 1993, he performed an analysis of the biological activity of compounds, including a
compound with serial number LY 311583.
Mr. Magee’s testimony fails to identify the structure and chemical make-up of the tested
compounds. As such, Mr. Magee’s testimony fails to confirm that Mr. Cullinan manufactured a
compound having the structure depicted as Lilly compound 311583.
B. Lilly Failed to Provide Sufficient Evidence of an Actual Reduction to Practice
Lilly, as junior party, has the burden of proof to establish priority and that burden is by a
preponderance of the evidence. Lilly has failed to meet that burden.
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