Interference No. 103,675
is using it to make fluorine-containing compounds.
See CR 1055, line 13 through CR 1056, line 17. Kadow testified that
Chen would have reasonably interpreted the NMR spectrum for the
compound prepared by him in October 1990 and shown in CX 21 to be for
a one-to-one mixture of 7-"-F- and 7-ß-F-taxol isomers. CR 1093, line
9 through CR 1094, line 8. Kadow also testified that in 1992, when the
Chen et al. application was filed, it was "reasonable" for Dr. Chen to
have concluded that the NMR spectrum for the products of Examples 3, 5
and 6 was "consistent" with a mixture of 7-fluorotaxol alpha and beta
isomers as reported in the examples. CR 1166-67; CR 1169-70; CR 1172-
73.
A discovery made after filing the first filed Chen et al.
application, and a discovery said to be "surprising", does not support
Chen et al.'s argument that a person of ordinary skill in the art
would have recognized, from the first filed application's disclosure
at the time of its filing, that cyclopropyl derivatives were obtained
or would have been expected to be obtained from the fluorination of
taxol with DAST, a known fluorination agent. To the contrary, we
consider Kingston's and Kadow's testimony above to be evidence which
supports a conclusion that the Chen et al. applications would not have
been recognized by a person of ordinary skill in the art at the time
they were filed as "describing" (in the sense of the statute) the
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