Interference No. 103,675
Dr. Chen's proposed formula, what was the identity of the compound
produced because Dr. Chen provided them with the structure he believed
the compound possessed in advance. Frilette v. Kimberlin, 412 F.2d
1390, 1398, 162 USPQ 148, 155 (CCPA 1969). Moreover, based on the
testimony of Bouchard et al.'s witnesses (Drs. Nicolau and Parker),
the spectra said to "confirm" the structure of the compounds as
compounds within the counts are capable of more than one reasonable
interpretation. Indeed, Chen et al.'s early "confirmation" of the
compounds as mixtures of fluorine epimers of taxol is evidence that
the NMR spectra are capable of more than one reasonable
interpretation. Additionally, Chen et al.'s own witnesses (Ms. Huang,
Dr. Kant) testified that the NMR alone was inadequate for confirming
the structure. See CR 664-65; CR 2169, respectively. Coupled with Chen
et al.'s unequivocal original determination that the compound prepared
was a "mixture" of fluoro epimers of taxol, Chen et al. have failed to
prove corroboration by a preponderance of the evidence.
Chen et al. have not provided any witness who observed Dr.
Chen's syntheses or even the persons who allegedly witnessed his
laboratory notebooks. While corroboration does not have to entail an
actual witnessing of the reduction to practice by a person who
understands what is going on, even under the "rule of reason" line of
cases there is a requirement for some corroboration independent of the
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