CHEN et al. v BOUCHARD et al. - Page 37



          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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