Interference 103,579
reasonably appear to be identical, or substantially identical,
and accordingly, the potato plants reasonably appear to be
transformed by identical or substantially identical processes.
Compare In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA
1977):
Where . . . the claimed and prior art products are
identical or substantially identical, or are produced by
identical or substantially identical processes, the PTO
can require an applicant to prove that the prior art
products do not necessarily or inherently possess the
characteristics of his claimed product.
In this case, the chemical structures of the DNA sequences
of the antisense constructs the parties’ claims describe are well
defined and readily compared. Therefore, it unnecessary to
determine the relative degrees of function indicated in the
parties’ claims until we find, based on comparable structures
of DNA sequences, that the antisense constructs the parties
respectively claim reasonably appear to be the same, or
substantially the same, or conclude that the antisense constructs
of one party’s claims reasonably would appear to have been
suggested by the other party’s claims. See In re Mills, 916 F.2d
680, 683, 16 USPQ2d 1430, 1433 (Fed. Cir. 1990) (“It is not
pertinent whether the prior art . . . possesses the functional
characteristics of the claimed invention if the reference does
not describe or suggest its structure”).
(e) “Sense” claims
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