Interference No. 105,041 Paper 26
Syngenta Participations AG v. Bayer CropScience GmbH Page 4
[13] Syngenta has submitted the declaration of Earl A. Wernsman.1
[14] Dr. Wernsman states that he reviewed the Bayer and Syngenta claims and disclosed art. Based
on that review, Dr. Wernsman declared that the non-interplanting claims do not anticipate the
interplanting claims and do not teach or suggest the interplanting claims.
[15] Dr. Wernsman provided a detailed explanation of how he reached his conclusion.
[16] Dr. Wernsman provided further reasons why one skilled in the art at the time of filing would not
have been motivate to interplant crops according to the invention.
[17] The declaration of Dr. Wernsman appears to be credible on its face.
[18] The examiner of the Syngenta application, David Fox, reviewed the Wernsman declaration
(37 C.F.R. § 1.614(c)) and concluded:
I have reviewed the declaration you faxed me, as well as the Harper specification
(U.S. Patent 6,392,123) and the claims of each party (I kept a copy of all claims
involved in the interference). Given the statements provided by the declarant,
who is clearly an expert in the field, and is not directly affiliated with either
interfering party, I agree that Harper's definition of "interplanting", and the use of
such interplanting of conditionally female sterile plants with male sterile plants in
a method of hybrid seed production, would not have been obvious to the artisan of
ordinary skill. I conclude that the "interplanting claims" of Harper would not have
been obvious over the "non-interplanting claims" of each party. My statements
below regarding alternate uses of conditionally female-sterile plants, such as the
production of seedless fruits, may be used as additional evidence that Harper's
"interplanting"/hybrid production/process-of-using claims are not obvious over
each party's product claims (conditionally female sterile plants) or each party's
claims drawn to a process of making the products.
[19] The "statements below" from the examiner further noted:
[T]here are other uses of conditionally female sterile plants, such as means of
making seedless fruit when conditionally sterile, then using the plants to
reproduce seed for propagation, possibly by self-fertilization rather than
1 None of the exhibits were properly marked.
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