(4) while the testing of BCH- 189 (-) enantiomer for anti-HBV activity did not begin
until July of 1991 (FF 59), the anti-HBV activity of the enantiorner"would be fully expected"
(Paper 88 at 23).
L Concqptic,
Furman's position is that "Drs. Painter and Furman had formulated the concept of the
invention of the interference Count when they clearly indicated in their July 17, 1990 notebook
entry that the compounds received from Dr. Liotta should be tested for anti-HBV activity." For
reasons set forth below, we need not and do not decide whether we agree with Furman's position.
Nonetheless, we note the following problems with Furman's position:
(1) It is not evident from the evidence presented whether the Furman inventors would
have discussed sending the Liotta samples for anti-HBV testing (FF 33C) because they had a
clear idea of using the samples in a method for treating HBV infection, because they were
following the terms of the agreement with Emory (FF 30), or for some other reason.
The agreement with Emory University called for "anti-viral screening". (FF 30). It
appears that there were four anti-viral screens in place" at BW during the relevant time frame
(Paper 88 at 17). Dr. Painter's notebook indicates that the Liotta samples had already been sent
for anti-HfV screening. Therefore, the anti-HBV screen was one of only three remaining anti
viral screens that could have been performed by BW pursuant to the agreement with Emory.
14 Evidence presented by Furman indicates the Dr. Korba's anti-HBV screen was not
considered "in-house" at BW. (See, e.g., Exh. 2049 at T 9). Nonetheless, evidence presented by
Furman shows that Dr. Korba's anti-HBV screen was available to BW chemists during the
relevant time frame. (Exh. 2017 and Exh. 2047).
24
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