Interference No. 104,843 Paper 51
Kundu v. Ragunathan Page 2
against Kundu for abandonment, suppression, or concealment (Paper 3). This proceeding
followed.
FINDINGS
The subject matter of the interference
[02] Both Ragunathan and Kundu engaged in an effort to produce a commercial, oral
formulation for the drug megestrol acetate that would not infringe a Bristol-Myers Squibb
Company patent [2004].3 Bristol-Myers Squibb has a product, MEGACE®, within the
scope of its patent that the Food and Drug Administration [FDA] has already approved
and that could thus provide the basis for an abbreviated new drug application [ANDA]
[2003 at ¶¶2, 5, & 7]. Bristol-Myers Squibb's early disclosure of an invention (its
Atzinger patent) without have fully exhausted all possible avenues of development
appears to have promoted the useful arts by enabling and inspiring others (Kundu and
Ragunathan) to explore its possibilities as well.
[03] Count 1, the sole count, is "An oral pharmaceutical composition of Ragunathan 065
claim 1." Ragunathan 065 claim 1 is:
An oral pharmaceutical composition in the form of a stable flocculated
suspension in water capable of being redispersed after being allowed to settle at
40° C. and 75% relative humidity for a period of three months, said composition
comprising:
(a) about 10 to 200 mg per ml micronized megestrol acetate;
3 A.E. Atzinger et al., "Megestrol Acetate Formulation", U.S. Patent 5,338,732 (16 August 1994) [2004].
Exhibits numbered 2xxx are Kundu exhibits; 1xxx, Ragunathan exhibits.
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