Interference No. 104,843 Paper 51
Kundu v. Ragunathan Page 5
Kundu’s evidence of work toward disclosure of the invention
[14] Alpharma USHP Inc. [Alpharma] is Kundu’s real party-in-interest. Kundu witness Peter
Capella was Alpharma’s team leader for its megestrol project during the relevant period
[2003, ¶2].
[15] The subject matter of the count is a flocculated suspension. According to Dr. Capella,
Alpharma was inexperienced in the preparation of flocculated suspensions, so it followed
its reduction to practice with dissolution studies; short- and long-term stability and
resuspendability analyses; design changes; floc size analyses; changes in surfactant,
surfactant concentration, and process of manufacture to optimize floc size; and in vivo
trials. Alpharma experienced foaming, lack of homogeneity, and problems in scaling up
to manufacturing-size batches [2003, ¶3].
[16] Kundu alleges a list of material facts about activities that occurred during the contested
period (Paper 31, [0014]-[0048]). Ragunathan has taken the position that it is "[u]nable
to admit or deny, and [the facts are] not relevant to the interference" (Paper 416 at 2).7
Kundu provides evidence that it was continuously working on problems related to the
subject matter of the count during the contested period [2033]. Specifically:
[16.1] Dissolution studies. Alpharma conducted numerous dissolution studies in 500 g and 3 kg
batches for various compositions [0014] & [0015]. The studies were repeated for 40 kg
6 Ragunathan's statement in support of the order to show cause.
7 Since Kundu has the burden of proof in this instance, Ragunathan need not have provide any response.
Nevertheless, Kundu’s response must be considered, including the facts Kundu has identified as material. A blanket
assertion of irrelevance is not helpful to fact-finders trying to produce a clear, complete, and timely decision. Similarly,
these paragraphs present a wealth of facts, but Kundu’s correlation of Alpharma's testing to Kundu's patent application
disclosure is generally sparse and vague, leaving it to the fact-finders to provide much of the correlation.
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