Interference 103,579
(VDX 1)) or Hovenkamp-Hermelink (VDX 9); and/or under
35 U.S.C. § 103 in view of the combined teachings of
Hergersberg, Hovenkamp-Hermelink, Visser’s PhD Thesis
(VDX 7) and van der Leij (VDX 3); was “denied for the
reasons stated in Hofvander’s opposition (Paper No. 47) with
respect to Hofvander’s claims 1, 4, and 7 to 23 and . . .
dismissed as moot with respect to claim 6" (Paper No. 74,
p. 5)5 with the following emphasis (Paper No. 74, pp. 5-6):
With respect to the Hergersberg publication,
the APJ agrees with Hofvander that this would not
render the Hofvander claims unpatentable. The
Hergersberg antisense sequences, assuming the
sequences are antisense, are much smaller than
those used by Hofvander. When the Hergersberg
antisense sequences are incorporated into a potato
plant, the modified potato plant reduced amylose
production by 30%. Since a potato normally produces
amylose in an amount of 20 to 25%, it would appear
that Hergersberg’s modified potato plants produced
amylose in an amount of from 14% to 18%, whereas
Hofvander’s modified potato plants result in
production of 6 to 9% amylose. Moreover, in
distinguishing over the Hergersberg publication,
the Hofvander opposition (pages 6 and 7) also
relies upon the same reasons as did Visser in
urging that his claims were unpatentable over
this publication. Since an interference-in-fact
exists between both parties’ claims, the APJ is
certainly persuaded by the foregoing argument that
the Hofvander claims are also patentable over
Hergersberg.
(3) Visser’s Preliminary Motion 3 (VPM 3)(Paper
5 The APJ stated that final judgment against Claim 6
would be entered because Hofvander attempted to cancel the
claim (Paper No. 74, p. 5 n. 1).
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