Interference No. 104,843 Paper 51
Kundu v. Ragunathan Page 21
overcoming an inference of spurring, Kundu's record supports the inference. It is important to
remember that spurred filing is not a bad thing per se. Indeed, it may simply reflect a change in
disclosure strategy based on new information. Where, however, the record already supports an
inference of suppression (i.e., a failure to have a disclosure strategy), spurring indicates not a
change in disclosure strategy, but rather a belated decision to disclose.
3. The totality of the evidence does not overcome the
inference of suppression
Kundu has adduced considerable evidence of activity related to the subject matter of the
count during the thirty-five months in question. A thorough review of the evidence cited and
explained in its brief does not, however, produce an abiding conviction that Kundu was
progressing inexorably to disclosure to the public or USPTO. Rather, Kundu appears to have
been progressing hopefully toward the filing of an ANDA, which might never produce a public
disclosure. The evidence of Kundu’s work on a patent application is incomplete, inconclusive in
its relationship to the present count, and very late in the period in question. Finally, Kundu
appears to have been spurred to file either by the litigation over Par's ANDA filing or by the
issuance of Ragunathan's 065 patent. Viewed in its totality, Kundu’s evidence does not clearly
and convincingly show that Kundu was reasonable in waiting nearly thirty-five months after its
reduction to practice to file its patent application. We therefore conclude that Kundu suppressed
the invention of the count within the meaning of §102(g).
C. Ragunathan's motion to suppress evidence
Ragunathan has moved (Paper 34) (1) to suppress Kundu exhibits 2012, 2021, 2042,
2043, and 2048-2051, which it contends violate the Federal Rules of Evidence, the interference
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