Interference No. 103,675
their burden of persuasion. What is important and relevant to Chen et
al.'s burden here is not whether or not there was an "organized
research" program but what evidence was kept and does the evidence
which was kept tend to show that it is more likely than not that Chen
et al. actually reduced to practice compounds within the counts.
To summarize Bouchard et al.'s position on the issue of an
actual reduction to practice, Bouchard et al. concede that Dr. Chen
and his colleagues prepared numerous compounds but question whether
the evidence on which Chen et al. rely establishes that Chen et al.
ever adequately identified what they prepared as a compound within any
of the counts. Bouchard et al. urge that Chen et al.'s identification
of the products they prepared was so deficient as to prevent Chen et
al. from arguing the compounds they prepared were, indeed, compounds
within any of the counts. Moreover, Bouchard et al. rely on Chen et
al.'s initial determination that what they had prepared were mixtures
of 7-fluoro epimers of taxol, as shown by the inclusion of procedures
from CX 20 in their first filed application, as evidence which proves
Chen et al. had no contemporaneous in time recognition or appreciation
that they had prepared any compounds within the count before Bouchard
et al.'s effective filing date.
We agree with Bouchard et al. that Chen et al. have failed
to prove that a compound within any of the counts was actually
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