Interference No. 104,843 Paper 51
Kundu v. Ragunathan Page 23
order, however, only pointed to the intervening issuance of Ragunathan's patent on 22 February
2000. Hence, Kundu could have argued that it was only on notice that it had to overcome a
spurring date of 22 February 2000. The problem with this hypothetical argument is that Kundu
did not brief any patenting activity before March 2000. Instead, Kundu relied on Alpharma's
ANDA developmental work to overcome the inference of spurring. Thus, in context, Kundu's
new tack in its reply brief, with attendant new evidence, shows a change in strategy after
Ragunathan's opportunity to respond. This effort was both too little and too late. Ragunathan's
miscellaneous motion 1 is GRANTED with regard to Kundu exhibits 2057-2059.
ORDER
Upon consideration of Kundu's response to the order to show cause, it is:
ORDERED that judgment on priority as to Count 1 is awarded against Kundu;
FURTHER ORDERED that Kundu is not entitled to a patent containing claims 1-19, 23-
33, and 36-57 of Kundu's 09/621,623 application, which correspond to Count 1;
FURTHER ORDERED that Ragunathan's miscellaneous motion 1 to suppress exhibits is
GRANTED for Kundu exhibits 2057-2059, but is otherwise DISMISSED; and
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