Interference 103,579
full length GBSS cDNA or gDNA is in the reverse or
antisense orientation. As such, claim 23 is not
patentable because it is anticipated by the expression
of the GBSS gene as it naturally occurs in the potato
plant. The judgment should be entered that Visser
claim 23 is unpatentable.
Whether or not Hofvander’s Claim 6 and Visser’s Claim 23 are
patentable to the respective parties, the claims are involved in
this interference. “Any claim of an application or patent that
is designated to correspond to a count is a claim involved in
the interference within the meaning of 35 U.S.C. 135(a).” 37 CFR
§ 1.601(f). However, “[a]n interference is a proceeding . . . to
determine any question of patentability and priority of invention
between two or more parties claiming the same patentable
invention” (37 CFR § 1.601(i); emphasis added). To determine
whether or not an interference-in-fact exists between subject
matter claimed in Hofvander’s involved application and subject
matter claimed in Visser’s involved application in this case, we
must consider whether subject matter defined by Claim 6 of
Hofvander’s involved application (subject matter which Hofvander
no longer considers to be its invention and/or subject matter
which Hofvander concedes is not independently patentable to
it) is patentable to Hofvander over subject matter defined by
Claim 23 of Visser’s involved application (subject matter which
Visser no longer claims to be its invention and/or subject matter
which Visser concedes is not independently patentable to it) and
-64-
Page: Previous 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 Next
Last modified: November 3, 2007