Interference 102,728
the parties do not seem to dispute, that the relevant formulae in the Brake specification
describe a DNA construct wherein “L” encodes the Saccharomyces "-factor leader
sequence.
As to the “S” embodiment of the DNA construct described in Count 1, the count
requires that “S,” contain the sequence “R1 - R2” wherein R1 is a codon for lys or arg and
R2 is a codon for arg. Accordingly, an invention within the scope of Count 1 requires a
DNA construct which comprises a sequence encoding a Saccharomyces "-factor
leader sequence followed by codons which encode either lys-arg or arg-arg. Here, we
find that the Brake ‘325 Application discloses that the “R-S” embodiment of the DNA
construct designates codons which code for lys or arg. The ‘325 Application, p. 3, lines
35-36, and p. 4, lines 23-24. Thus, the “R-S” embodiment disclosed in the ‘325
Application can be lys-arg; arg-arg; arg-lys; or lys-lys. Accordingly, we find that the
Brake 1 specification provides written descriptive support for a DNA construct which
encodes a Saccharomyces "-factor leader sequence followed by codons which code
for either lys-arg or arg-arg.
As to the “(GAXYCX)n ” portion of the formula in Brake 1, we find that the
specification discloses that “GAX” and “YCX” are codons which encode, inter alia, glu
(glutamine) and ala (alanine), respectively.13 The Brake 1 specification further discloses
13 In this case, Brake 1 uses the designation “GAX” and “YCX” to demonstrate
that, when present; i.e., when n$1, it is immaterial (i) which nucleotides are present in
the third position delineated as “X,” and (ii) whether a “G” or “C” is present in the
position designated by “Y.” That is, Brake 1 states that “X” can be any of the four
nucleotides “T,” “G,” “C” or “A.” The ‘325 Application, p. 4, lines 3-4. Thus, with respect
to the first codon in the formula, “GAX,” we find that one skilled in the art would have
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