Brief summary of he facts'
Burroughs Wellcome, Inc. ("BW")2 first received a sample of BCH- 189 from BioChem
Pharma' in 1989. BW tested the BCH-l 89 and found it to be active against human
immunodeficiency virus ("HIV). Thereafter, Dr. Dennis Liotta of Emory University sent a
group of nucleoside analogs synthesized by Dr. Liotta ("the Liotta samples") to BW for anti-viral
testing. Among the Liotta samples was BCH- 189. In late October and early December of 1990,
BW consultant Dr. Brent Korba tested BCH- 18 9 for its activity against HBV. InmidDecember
of 1990, Dr. Korba provided a report indicating that BCH-I 89 was active against HBV. BW did
not test the separate enantiomers of BCH-189 for anti-HBV activity until July of 1991.
Brief summary of the decision
Since Furman has failed to show that it was the first to invent the subject matter of any of
the counts in the interference by a preponderance of the evidence, we enter judgment against
Furman as to all counts. In particular, we determine that Furman has not shown by a
preponderance of the evidence: (1) that Furman actually reduced to practice the invention defined
by count 1, count 2, or count 3 prior to Belleau's priority benefit date of 3 January 199 1; or
(2) that Furman was diligent up to Furman's constructive reduction to practice date of 2 May
1991.
It is our understanding that these facts are not in dispute (Paper 88 at 6,7,11, and
12 and Paper 91 at 1).
2 We understand Burroughs Wellcome, Inc. to refer to Furman's real party in
interest. (See iLnfra at finding of fact ("FF") 5).
3 Belleau has identified BioChem Pharma as its real party in interest.
3
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