Interference 103,579
A potato normally produces both amylose and
amylopectin with the amylose normally being present
in an amount of 20 to 25%. Both parties’ claimed
inventions are directed to improving the production
of amylopectin in potatoes by the incorporation of
antisense DNA matter into the potato plant genome.
The Visser claimed invention is directed to the
incorporation of the full length antisense potato
granule bound starch synthase (PGBSS) cDNA or gDNA
into a potato plant, thereby inhibiting the production
of amylose. According to the evidence relied upon by
Visser, the Visser modified potato plants produce
100% amylopectin and inhibit the production of any
amylose.
The Hofvander claimed invention is directed to
the incorporation of antisense fragments of the PGBSS
gene into a potato plant to inhibit the production of
amylose. According to the evidence relied upon by
Hofvander, his modified potato plants produce 91 to
94% amylopectin, the remainder being amylose.
The difference in amylopectin production by using
Visser’s modified potato plants rather than Hofvander’s
modified potato plants is about 6%. The Vissen [sic]
evidence, however, does not show that the difference
is unexpected. While Visser’s potato plants and
Hofvander’s potato plants produce differing amounts of
amylopectin, both sets of plants produce amylopectin in
increased amounts over unmodified potato plants. The
APJ agrees with the Hofvander opposition that Visser’s
motion fails to show that the difference in activity
is unexpected thereby rendering the Visser claims
unobvious. See, in general, In re Merck & Co., Inc.,
800 F.2d 1091, 1099, 231 USPQ 375, 381 (Fed. Cir.
1986).
(2) Visser’s Preliminary Motion 2 (VPM 2)(Paper
No. 18) for judgment that Claims 1, 4, and 6 to 23 of
Hofvander involved application, filed November 24, 1993,
are unpatentable under 35 U.S.C. § 102 over Hergersberg
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