Interference No. 103,675
support the arguments. Argument does not take the place of probative
objective evidence.
On pages 165 through 172 of their brief, Chen et al. urge as
part of their alleged actual reductions to practice that they
sufficiently tested compounds within the count for practical utility
to satisfy that part of the legal requirements for proving an actual
reduction to practice. Specifically, for compounds alleged to be
compounds within Count 4 and Count 2, Chen et al. allege they
demonstrated through two, art-recognized assays (tubulin
polymerization assay and in vitro cytotoxicity assay), that the
compounds tested had activity at least comparable to taxol and that
such activity would have been indicative to a person of ordinary skill
in the art that the compounds would exhibit pharmacological activity
at least comparable to taxol. Additionally, Chen et al. argue that
they demonstrated for at least two compounds within the Counts 4 and
2, that the compounds exhibited significant anti-tumor activity in in
vivo animal tests. With respect to compounds within Count 3a, the so-
called baccatin intermediate, Chen et al. urge that the utility of
compounds within Count 3A as intermediates for preparing compounds
within Counts 4 and 2 was self-evident. Chen et al. urge that when
they prepared a compound within Count 3A it was therefore unnecessary
to prove any other practical utility for that compound.
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