Interference No. 104,522 Paper108
Nichols v. Tabalkoff Page 16
arguing that Nichols "clearly knew that kynurenic acid derivatives had l2otential use as
anticonvulsants" (NB, p. 33, emphasis added) is insufficient to show either that a
specific type of kynurenic acid derivative, i.e., a 4-urea derivative, or a specific
embodiment thereof, i.e., compound 94A-64-11 (a diethyl urea-5,7-dichloro-derivative),
would actually work for its intended purpose. (This also applies to compounds 94A-85
1, 94B-27-1 and 94B-32-111 discussed below.)
Therefore, Nichols fails to meet its burden of proving that the April 11, 1994
experiment resulted in an actual reduction to practice of an embodiment within the
scope of the Count, i.e., that the theoretically expected product was obtained and would
work for its intended purpose.
b. the May 3, 1994 synthesis
24. Dr. Nichols testified that
[o]n May 3, 1994, ... I utilized triphosgene 1CO(OCCl3)21 to attach the
carbonyl group [CO] to the 4-amino group of 4-tosylamino-5,7-dichloro-2
carboxy-quinoline methyl ester and diethylamine [NH(ethyl)21 to attach the
secondary amine [N] to the carbonyl group [CO]. Attached as Exhibit
2032 are copies of pages 94A-81, 94A-83 and 94A-85 from my Lab Book
documenting this experiment, which also documents the expected product
having a 4-diethyl urea substitution. I labeled a sample from this
experiment 94A-85-1.
On May 13, 1994, 1 had a NMR spectrum performed on sample 94A-85-1.
A copy of a spectrum data sheet generated from the NMR spectrum of
sample 94A-85-1 and the declaration of Edward L. Ezell, the individual
who performed the NMR spectrum on sample 94A-85-1, are attached as
Exhibit 2034 and Exhibit 2033, respectively. The NMR spectral data
indicates that the expected product having a 4-ethyl urea substitution
((NN-diethyl)-4-ureido-5,7-dichloro-2-carboxy-quinoline methyl ester) was
successfully produced.
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