Interference No. 103,675
Glaring by its absence from the above cited passage is any reference
to the "record" or any part of the statement of facts from pages 24
through 150 of Chen et al.'s brief which supports Chen et al.'s
conclusion. We observe that the only activity in Chen et al.'s first
filed application, directed to mixed 7-fluoro epimer derivatives of
taxol, which mentions in part the subject matter of the counts in this
proceeding was Chen et al.'s petition to withdraw the application from
issue filed on January 19, 1993. That petition, was filed subsequent
to Bouchard et al.'s effective filing date and therefor cannot be
relied on to prove reasonable diligence from just prior to Bouchard et
al.'s filing date up to a reduction to practice.
Chen et al. have attempted to rely on case law in their
brief, decided on other facts, distinct from the facts here, in an
attempt to fill in the evidentiary gaps in their proofs. In Bey v.
Kollonitsch, 806 F.2d 1024, 231 USPQ 967 (Fed. Cir. 1986), there was
substantial, corroborated, unrebutted evidence which established
reasonable diligence. Specifically, the court observed concerning the
work performed by Hattan, the attorney prosecuting the "related
applications" that:
The record of Hattan's work on the related cases during the
41-day critical period contains unrebutted evidence of
reasonable diligence. There is corroborated evidence of
100
Page: Previous 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 Next
Last modified: November 3, 2007