Interference No. 104,843 Paper 51
Kundu v. Ragunathan Page 22
rules, and the Standing Order (Paper 2); (2) to suppress exhibits 2057-2059 for untimeliness;
and (3) to suppress various parts of exhibits 2003, 2005, 2006, 2010-2020, 2022-2024, 2026,
2036, 2044, 2045, 2046, 2052, 2053, and 2054. The Federal Rules of Evidence apply generally
in patent interference proceedings. Rule 671(b). Given the result on the merits, the first and
third parts of the request are DISMISSED as moot. The second part of the request, however,
requires further analysis.
With its reply, Kundu supplied additional exhibits purporting to show that Alpharma was
working toward a patent disclosure of the subject matter of the count as early as September 1999,
which is before the first indication in the record (October 1999) that Alpharma was aware of
Par's ANDA efforts. As explained above, this evidence of earlier activity is entitled to little
weight because Kundu has not shown a nexus between its nascent interest in a patent in
September 1999 and the subject matter of the count. Nevertheless, to the extent it is probative, it
should have been served and discussed in its brief so Ragunathan would have had an opportunity
to respond. It is worth noting that Kundu's brief did not discuss any patenting activity before
March 2000. A late-filed paper will only be excused on a showing of good cause. Rule 645(b).
Kundu contends (Paper 3716 at 8) that exhibits 2057-2059 were properly submitted with
its reply brief in response to Ragunathan's allegation of spurring, which first appeared in
Ragunathan's statement in support of the order to show cause. The problem with this contention
is that the order to show cause first raised the question of spurring (Paper 3 at 2). Kundu was
aware of spurring as an issue because its own brief addressed spurring (Paper 31 at 26). The
16 Kundu's opposition to Ragunathan miscellaneous motion 1.
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