Interference No. 103,675
Before we begin our analysis of Chen et al.'s case for
priority we are compelled to make the following observation concerning
Chen et al.'s priority brief. Chen et al.'s brief includes, as
required by the rule, a statement of facts in numbered paragraphs.
Most of the numbered paragraphs do recite facts which may be relevant
to the issues to be decided. Many of the numbered paragraphs, however,
are expressions of conclusions of fact and law or are opinions without
underlying support in the record. For example, in paragraph number 52
on pages 37 and 38 of their brief, Chen et al. state as a fact that
Dr. Chen's original NMR for the sample described in his laboratory
notebook 30347-025 (CX 20) "really produced a 1:1 mixture of 2'-O-
benzyloxycarbonyl-7-"-fluorotaxol and 2'-O-benzyloxycarbonyl-7-deoxy-
8-desmethyl-7,8-cyclopropataxol." This is not a fact but is precisely
one of the elements Chen et al. must prove by a preponderance of the
evidence in order to be declared the first inventors of the subject
matter of the counts. See also paragraph numbers 69; 146; 184; 189;
190; 216; 224; and 427, for example.
Chen et al.'s brief also includes an argument section
containing the contentions of Chen et al. with respect to the issue of
priority as required by the rule. The section of the brief entitled
"Argument" has scant reference to the specific underlying facts from
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