Interference No. 104,843 Paper 51
Kundu v. Ragunathan Page 10
preferences. Kundu was aware of its need to provoke an interference with Ragunathan's
065 patent when its application was being drafted.
Evidence on the question of spurring
[20] Kundu's brief relies on exhibits 2001-2051 (Paper 31 at 1). Exhibits 2052-2062 first
appear with the reply. James Brady, a patent practitioner then advising Alpharma,
declared [2057] that his firm provided legal services to Alpharma during 1999 (¶26),
including services prior to October 1999 (¶27), and including in September 1999 a non-
infringement analysis and a discussion of unexpected results and "the patentability of
Alpharma's reformulated Megace" (¶29); also [2059 at 5]. The billing record [2058] has
numerous September 1999 entries, but their significance is not explained except to say
that it represents "counseling" on Alpharma's megestrol formulations (Paper 428 at 9).
Kundu did not provide any further information about "Alpharma's reformulated Megace"
or any statement that it was a formulation within the scope of the count.
[21] In an October 1999 memorandum, Alpharma noted that Ragunathan’s real party-in-
interest [Par] had filed an ANDA for MEGACE® and that Bristol-Myers Squibb had
initiated a suit against Par. The memorandum indicates an intent to consult patent
counsel about the significance of these events [2026, ¶11].
[22] Mr. Brady declared that patent protection for Alpharma’s megestrol formulations was
discussed on 23 November 1999 [2037, ¶4]. Mr. Brady further declared that he proposed
the preparation of a patent application for Kundu’s megestrol formulations in December
8 Kundu's reply Ragunathan's statement in support of the order to show cause.
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