Interference No. 104,843 Paper 51
Kundu v. Ragunathan Page 11
1999 [2037, ¶5]. Billing records indicate the commencement of work at Mr. Brady’s firm
on "Megestrol Acetate Composition and Method (Patent)" on 23 December 1999 [2042].
Inexplicably, Kundu does not refer to work before March 2000 in its brief (Paper 31
at 23-26) when discussing its work on the Kundu application, but did point to it at the
oral argument (Paper 489 at 22-23).
[23] On 22 February 2000, Ragunathan’s involved 065 patent issued.
[24] Dr. Capella states that Alpharma's patent counsel was directed to prepare an application
in March 2000 [0046] [2003, ¶7]. Mr. Brady concurs that his firm was instructed to
prepare and file an application on Kundu’s invention in mid-March 2000 after completion
of a successful ANDA batch [2037, ¶¶7 & 8]. The billing records also indicate that
billing for application drafting on "Megestrol Acetate Composition and Method (Patent)"
resumed in mid-March 2000 [2042]. A confirmatory letter on 24 March 2000 shows that
Alpharma was aware of Ragunathan’s 065 patent and intended to provoke an
interference. Alpharma was also working on new formulations intended to avoid both the
Atzinger and Ragunathan patents [2043]. Since Kundu did not identify the December
1999 work in its brief, it did not explain either the gap or the apparent discrepancy on
when drafting work on the invention of the count began. The December 1999 draft was
not submitted for comparison, so it is not possible to determine what precise invention
that application covered or whether it included the invention of the count.
9 Oral argument transcript.
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