Interference No. 103,675
than August 1991, Dr. Chen learned from the Bristol-Myers Squibb
computer system that BMS-46546 had antitumor activity. The results of
the testing were included in Dr. Farina's November 1991 memorandum (CX
35).
Assuming for the sake of argument that all Chen et al.'s
evidence is authenticated, admissible, probative and corroborated as
is necessary, mere inspection of all the evidence on which Chen et al.
rely, at the time BMS-46546 was prepared reveals that it was
understood by Drs. Chen and Farina to be a 1:1 mixture of C7-fluoro-
epimers of taxol not cyclopropyl derivatives as described and required
by all the counts in this interference. Indeed, as we observed in our
decision on the parties' preliminary motions, because DAST was known
to be a fluorinating agent at the time Dr. Chen selected it for
reaction with taxol, it was reasonable to expect that the product
obtained by reacting taxol with DAST would have been a mixture of
fluoro derivatives. Nothing in Chen et al.'s evidence contemporaneous
in time with their experimental efforts proves otherwise.
Nevertheless, Chen et al.'s evidence is not persuasive
because of other serious shortcomings. Chen et al. rely on Dr. Chen's
various notebooks as the underpinning of the evidence on which they
rely in support of their case for priority. But the notebooks, at
best, serve as evidence of conception and as Dr. Chen is an inventor,
107
Page: Previous 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 Next
Last modified: November 3, 2007