Interference No. 104,843 Paper 51
Kundu v. Ragunathan Page 3
(b) about 10 to 40% by weight of at least one compound selected from the
group consisting of polyethylene glycol, propylene glycol, glycerol, and
sorbitol; and
(c) about 0.0001 to 0.03% by weight of a surfactant, wherein polysorbate
and polyethylene glycol are not simultaneously present in said
composition.
[04] The composition of the count includes megestrol acetate, which is a water-insoluble,
pharmaceutically active compound that can be used to combat loss of appetite in humans
due to, for example, anorexia or cachexia (Paper 31,4 admitted fact [0004]).
[05] Kundu has fifty-seven claims, of which 1-19, 23-33, and 36-57 correspond to the count.
Although Rule 617(b) permits a party to file a motion to change the count, including
claim correspondence, as well as the accorded benefit, Kundu elected to respond to the
order without filing a motion.
[06] The declarants have not been cross-examined at this stage of the proceeding. The
statements in the declarations are assumed to be true for the purposes of the Rule 617
proceeding.
Prima facie implication of suppression
[07] Ragunathan filed the 09/063,241 application on 20 April 1998. That application issued as
the involved 065 patent on 22 February 2000 [2002].
4 Kundu Response to Order to Show Cause Under 37 C.F.R. §1.617.
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