Fujikawa v. Wattanasin (94 F.3d 1559, 1996 August 28)

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[USEFUL] {1} In the pharmaceutical arts, our court has long held that practical utility may be shown by adequate evidence of any pharmacological activity. ... Such activity constitutes a practical utility because "[i]t is inherently faster and easier to combat illnesses and alleviate symptoms when the medical profession is armed with an arsenal of chemicals having known pharmacological activities. Since it is crucial to provide researchers with an incentive to disclose pharmacological activities in as many compounds as possible, we conclude that adequate proof of any such activity constitutes a showing of practical utility." Nelson, 626 F.2d at 856.

[USEFUL] {2} It may be difficult to predict, however, whether a novel compound will exhibit pharmacological activity, even when the behavior of analogous compounds is known to those skilled in the art. Consequently, testing is often required to establish practical utility. See, e.g., Blicke, 241 F.2d at 720. But the test results need not absolutely prove that the compound is pharmacologically active. All that is required is that the tests be "reasonably indicative of the desired [pharmacological] response." Nelson, 626 F.2d at 856. (emphasis added). In other words, there must be a sufficient correlation between the tests and an asserted pharmacological activity so as to convince those skilled in the art, to a reasonable probability, that the novel compound will exhibit the asserted pharmacological behavior. See Cross, 753 F.2d at 1050.


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