Interference No. 104,843 Paper 51
Kundu v. Ragunathan Page 20
Even with the advantage of knowing what it was up against, Kundu provided relatively
little detailed disclosure of Alpharma's work toward perfecting the invention. While Kundu
pointed to many obstacles overcome in its justification for the delay, the obstacles are either not
disclosed or are disclosed as alternate embodiments. For instance, Kundu lost much time
exploring the PLURONIC® F127 formulation, which it ultimately regarded as a failure because
it was not bioequivalent to MEGACE®, but which it disclosed as a preferred embodiment. Had
Kundu prepared its application isolation, these defects would have been easier to overlook, but
here Kundu knew it had a higher standard to meet. Similarly, Kundu's brief discloses numerous
facts about Alpharma's development efforts, but provides much less guidance on how these
efforts improved the resulting disclosure. A party with the burden of proof leaves the work of
making the connections to the fact-finders at its own peril.
2. Kundu’s evidence does not overcome the inference of
spurring
Kundu argues that its extensive work shows it was not spurred into disclosing its
invention (Paper 31 at 26). The record, however, indicates that Alpharma was focused on filing
an ANDA, not timely public disclosure. As explained above, ANDA development is very weak
evidence of an intent to publically disclose. The two efforts to disclose through patenting both
come very late and shortly after Alpharma became aware of activity by Par. The first instance,15
the November-December 1999 patenting activity followed Alpharma's awareness in October
1999 of a Par ANDA targeting MEGACE®. The second instance starting after a lapse of over
two months in March 2000 followed publication of Ragunathan's 065 patent. Hence, far from
15 Which Kundu did not brief. The evidence of even earlier work is suppressed.
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