Dilizen
Even if we determined that Furman's July, August, or December activities amounted to a
conception, Furman has not argued" or otherwise shown that it was diligent up until 2 My 1991
(Furman's constructive reduction to practice date)."
The count 2 and count 3 comDounds
Count 2 and count 3 are directed to a subset of the compounds defined by the count I
where the compounds are either substantially free of the corresponding (+)-enantiomer (count 2
and count 3) or contain more of said (-)-enantiomer than the corresponding (+)-enantiomer
(count 2).
Furman relies upon its argued reduction to practice of BCH-189 to show reduction to
practice of the invention of counts 2 and 3. In particular, Furman argues that once BCH- 189
was reduced to practice, the separate enantiomers were also reduced to practice since "once Dr.
Korba proved that BCH-189 possessed anti-HBV activity, the anti-HBV activity of the BCH
189 enantiomers would be fully expected" (Paper 88 at 22-23). Furman has not shown a
reduction to practice of the enantiomers of BCH-189 prior to Belleau for at least the same
reasons that Furman had not shown a reduction to practice of BCH- 189 prior to Belleau.
Moreover, even if Furman had shown a prior reduction to practice of BCH- 189. Furman
has not shown a prior reduction to practice of the compounds of count 2 or count 3. In particular,
17 Furman's only argument regarding diligence relates to Dr. Korba's testing which
was said to have been performed diligently (Paper 85 at 19 and 2 1).
18 We use 2 May 2001 as Furman's reduction to practice date for evaluating
diligence since Furman has not established an earlier reduction to practice date on the record
before us.
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