Interference No. 103,675
al. application at the time it was filed, would have readily
understood that instead of obtaining mixtures of 7-fluoro-isomers,
mixtures of 7-"-fluoro isomers and 7,8-cyclopropataxols would have
been expected to be obtained by performing the steps set forth in the
examples.
From the record, it is clear that the first indication in
the first filed application for which Chen et al. seeks benefit that
Chen et al. believed the products produced therein to be other than
the disclosed mixture of "- and ß-epimers of the F-taxol derivative
synthesized was in January 1993 when the petition to withdraw the
application from issue was filed. Nevertheless, there was simply no
evidence filed with the petition, nor any in this proceeding, which
established the basis on which Chen et al. formed their newly found
belief as to the nature of the final products. The tenor of the first
filed application is otherwise clear. Fluorinated derivatives of taxol
prepared using diethyl amino sulfur trifluoride (DAST), a known
fluorinating agent, were obtained.
In our view, Chen et al. have fallen into the practice of
first presenting decisions from our reviewing courts generally related
to the question before us but in which decisions the facts differ
substantially from the facts before us and then crafting a rule of law
from these cases said to be applicable to all cases regardless of the
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