Interference 103,579
moot with respect to Claim 6 (Paper No. 74, p. 5 n. 1):
Since Hofvander et al. have attempted to cancel claim 6,
judgment will be entered against claim 6 when final
judgment is entered in this case.
At Final Hearing on July 18, 2001, Hofvander’s counsel,
Mr. R. Danny Huntington, stated that Claim 6 of Hofvander’s
involved application no longer was part of this interference.
Hofvander’s Preliminary Motion 1 (HPM 1)(Paper No. 28) to
substitute Proposed Count H-1 was granted (Paper No. 74, p. 10).
In the course of its decision granting HPM 1, the decision on
motions noted (Paper No. 74, p. 11 n. 3):
Visser’s opposition to Hofvander’s motion (1) acknowledges
in footnote 13 that Visser’s claim 23 is unpatentable over
prior art. Judgment with respect to this claim is deferred
to final hearing.
Footnote 13 of Visser’s opposition to Hofvander’s Preliminary
Motion 1 (Paper No. 28) reads (Paper No. 38, p. 11 n. 13):
Visser agrees with Hofvander that Count 1 and corresponding
Visser claim 23 are unpatentable. Visser would have
cancelled claim 23 but for the fact the rules do not
permit the cancellation of such a claim. Visser claim 23
(and the Count) are unpatentable to Hofvander and Visser
at least in view of the teachings of Hergersberg because
Visser claim 23 (and the Count) include the full length
potato GBSS gene, i.e., in the sense orientation.
Visser’s brief clarifies its position with respect of Claim 23
(VB 32):
Visser claim 23 is directed to an homologous
construct of the potato plant comprising a full length
GBSS cDNA or gDNA. There is no recitation that the
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